IMPUNITY WATCH  ANNUAL REVIEW 

      Volume 2 
 

 

 2011­2012 

   

Dedication 
Seeking Justice in a Changing World 
 

 
Warren R. M. Popp 
 

Articles 
Resurrecting Saul Alinsky in North Africa: Rules for the Polisario  Does Being at War Make Them All Warriors?    Categorization of Persons Involved in an Armed Conflict and  Whether a Different Categorization Would Yield A Different Result  in the Conflicts in Iraq and Afghanistan  Cultural and Legal Influences and Impediments to Cultivating Peace  and Human Rights in Islamic States 
 

 
Leah Farish, Esq.  Jan Fleckenstein 

Kevin Hugh Govern 
 

Notes 
Redress for Placement on Government Kill List?   Justiciability, Separation of Powers, & International Law   in Al Aulaqi v. Obama  The Traffick Network:   How Social Media  Aids in International Slavery  Gender‐Based Persecution as a Basis for Asylum in the United States:  Structural and Procedural Defects 
 

  Warren R. M. Popp 

Alison Owens  Jacquelyn Grippe 
 

Special Features 
Reflections on Justice in the Former Yugoslavia  Notes From Kampala:  A Series of Reflections and First Hand Accounts From a Law  Student’s Summer in Uganda  A Moral Responsibility  Winning essay in a high school essay contest sponsored by the  Summer Institute for Genocide Studies, the Robert H. Jackson  Center, and Impunity Watch. 
 

 
Jennifer Trahan  Reta Raymond 

Kerry McPhee   

 

News Reports 
 
Collective Year in Review:  i Select News Articles from Each Regional News Desk 

  Impunity Watch  Reporting Staff 

 

    Impunity  Watch is  owned, published,  and printed annually by  Syracuse  University, Syracuse,  New York 13244‐1030, U.S.A.      The  publication  is  designed  to  chronicle  some  of  the  most  significant  instances  of  impunity  during  the  previous  year  as  reported  on  our  website.   Impunity  Watch  provides  objective  reporting on impunity issues throughout the world, allowing oppressed individuals to gain a  public  voice.    The  goal  of  Impunity  Watch’s  web‐based  presence  is  to  immediately  alert  the  world to impunity issues.  Impunity Watch also publishes articles relating to impunity issues  from  academic,  professional,  and  student  authors.    Impunity  Watch  aims  to  examine  human  rights and impunity issues from both a grassroots and academic perspective.     Impunity  Watch  actively  seeks  and  accepts  article  submissions  from  scholars  and  practitioners  in  the  fields  of  international  law,  human  rights,  political  science,  history,  and  other  humanitarian  law  related  fields.    The  publication  hosts  an  annual  symposium  in  the  spring  of  each  year  and  maintains  a  comprehensive  website  of  all  the  articles  and  reports  published.  From  Impunity  Watch’s  founding  three  years  ago,  it  has  grown  through  the  dedication of many students and the guidance of Professor David Crane at Syracuse University  College of Law.  Impunity Watch  now has a dedicated readership around the world, including  many  government  officials  and  NGOs.    Please  Visit  our  website  to  read  past  and  current  reports, and consider subscribing to our daily news feed.    The views expressed within are solely those of the authors and do not necessarily reflect the  views of Impunity Watch, its advisors, editors or staff, Syracuse University College of Law, or  Syracuse University.      Editorial  and  business  offices  are  located  at:  Syracuse  University  College  of  Law,  E.I.  White  Hall, Room 159, Syracuse, NY 13244‐1030 U.S.A.   
Published works are also available at www.ImpunityWatch.com                     

2012 Impunity Watch.  All rights reserved.    Published by Impunity Watch    Cite as: *Author*,  *Article*, 2 IMPUNITY WATCH ANN. REV. *Page*  (2012). 

 

For more information please visit www.ImpunityWatch.com or contact us at  ImpunityWatch@gmail.com  ii 

 

 

Syracuse University College of Law Impunity Watch Editorial Staff 2011 – 2012
_____________________________________________________________________________________________ Executive Board Managing Editor, News Eric C. Sigmund Administrative Editor Daniel Austin Senior Leadership Notes and Comments Editor Jacquelyn Grippe Senior Articles Editor Ali Sprott-Roen Lead Articles Editor David Chaplin Community Development Coordinator Erica Laster Senior Desk Officers North America & Oceania Erica Laster Asia David Chaplin Europe Polly Johnson Africa Laura Hirahara Associate Members Joseph Juhn Regional Desk Reporters Greg Donaldson Emilee Gaebler Alexandra Halsey-Storch Brittney Hodnik Hibberd Kline Associate Articles Editors Stefanie M. Gruber Associate Special Features Editors John E. Marshall Faculty Advisor David M. Crane Reta Raymond Middle East R. Renée Yaworsky South America Erica Laster Special Features Editor Christina Berger Assistant Community Development Coordinator David Chaplin Editor-in-Chief Warren R. M. Popp Managing Editor, Journal Alison Owens Technology Director Laura Hirahara

Carolyn Abdenour Tamara Kiley Alfred Paula Buzzi Adom Malcolm Cooper

Jessica Ties Zach Waksman Terance Walsh Tyler Yates

Aidan B. Cleghorn Kayleigh Q. DeLap

Emily Krouse Brianne Yantz

iii 

 

  FACULTY ADVISOR TO THE JOURNAL 
  DAVID  M. CRANE   
Professor David Crane was appointed a professor of practice at Syracuse University College of Law in the summer of 2006. From 2002-2005 he was the founding Chief Prosecutor of the Special Court for Sierra Leone, an international war crimes tribunal, appointed to that position by the Secretary General of the United Nations, Kofi Annan.

. As Chief Prosecutor, Professor Crane served with the rank of Undersecretary General, with a mandate to prosecute those who bore the greatest responsibility for war crimes, crimes against humanity, and other serious violations of international human rights committed during the civil war in Sierra Leone during the 1990’s. Among those he indicted for those horrific crimes was the President of Liberia, Charles Taylor, the first sitting African head of state in history to be held accountable. Professor Crane was the first American since Justice Robert Jackson and Telford Taylor at the 1945 Nuremberg Trials to be the Chief Prosecutor of an international war crimes tribunal. The Office of the Prosecutor is located with the Special Court in Freetown, Sierra Leone. Professor Crane served over 30 years in the federal government of the United States. Appointed to the Senior Executive Service of the United States in 1997, Professor Crane has held numerous key managerial positions during his three decades of public service, to include serving as the Waldemar A. Solf Professor of International Law at the United States Army Judge Advocate General’s School. Professor Crane teaches international civil and criminal law, international humanitarian law, and national security law courses at the College of Law. Additionally, he is a member of the faculty of the Institute for National Security and Counterterrorism, a joint venture with the Maxwell School of Citizenship and Public Affairs at Syracuse University. Professor Crane is on the leadership council of the American Bar Association’s International Law Section and serves as a co-chair on the section’s International Criminal Court Task Force. In 2006, he worked with a dedicated group of students to found Impunity Watch (www.ImpunityWatch.com) a law review and public service blog, with the official launch of the journal in October 2007.
iv 

 

D E DICATIO N
SEEKING JUSTICE IN A CHANGING WORLD
by Warren Popp
 

 

Impunity Watch dedicates this year’s Annual Review to those individuals across the globe who, against all odds, stood up to the beast of impunity to fight for human rights and freedom. The daily work of Impunity Watch has allowed us to better understand how a humble street vendor in Tunisia could become the catalyst for a revolution that now has the potential to free millions of people from oppression and tyranny at the hands of their own government. We also began to see how important it is to keep up with an ever-changing and developing world, and to not cave into the apathy or defeatism that sometimes makes the work of human rights defenders feel insurmountable. When a government suppresses its own people, change, and even revolution, is not only possible, it is inevitable. It has been a busy and productive year for Impunity Watch, as we worked fervently to stay on top of rapidly changing human rights situations across the globe. Although we always wish that we could do more, we are confident that we have succeeded in our goal of shedding light on government impunity through the publication of professional news stories and academic articles of the highest caliber. Included in this year’s issue of our Annual Review is a sampling of some of our finest work to date. To keep up with the changing times, this year we were excited to launch the first law journal mobile app, which is available in the Android Market and will be available soon for iPhones and iPads. This was an effort that was initiated by the previous year’s Impunity Watch leadership team—with the help of two committed graduate student developers from the Syracuse University School of Information Studies—in recognition of the essential role this type of mobile access is playing in supporting the work of the activists of the “Arab Spring” and beyond, and is an effort that this year’s team was proud to ultimately bring to fruition. We believe that these new platforms will help make our publication more accessible and, as a result, will help further the reach of our work. In recognition of a responsibility for Impunity Watch to give back to the communities that support us, coupled with the desire to fill an educational void amongst much of the U.S. citizenry, this year we were extremely proud to launch our community outreach program. Led by the tireless efforts of our first ever Community Outreach Coordinator, third year law student Erica Laster, we were able to send Impunity Watch staff members into Syracuse City high schools to teach students about human rights and international humanitarian law issues, helping them understand the importance of human rights both at

 

home and abroad. This proved to be an extremely fruitful program, with positive feedback from students, teachers, and the participating Impunity Watch staff members themselves. Overall, this was a challenging, yet promising, year for all human rights defenders. Although we have seen human rights violations continue, we are also beginning to see how the promise of freedom and the rule is law is more powerful then even the mightiest of dictators. In addition to the Arab Spring and other promising signs of progress in countries across the globe, we witnessed a major achievement for international justice with the first conviction by the International Criminal Court in the Lubanga Trial. On April 26, 2012, we also learned of the first conviction of a sitting African head of state, Liberian President Charles Taylor, for war crimes, crimes against humanity, and other serious violations of human rights. This was an especially exciting event for Impunity Watch because our cherished faculty advisor, David M. Crane, indicted Charles Taylor while serving as the Founding Chief Prosecutor of the Special Court for Sierra Leone. Professor Crane was in The Hague when the guilty verdict was read. This was a very proud moment for the people of Sierra Leone, and for all those who worked tirelessly for justice on their behalf. These international criminal convictions have helped reaffirm the oft-quoted phrase of Professor David Crane, “the rule of law is more powerful then the rule of the gun.” Although we are heartened by all of these achievements, the brutal responses to calls for freedom and democracy within Libya, Syria, and in numerous other countries across the globe, constantly reminds us that much work needs to be done. Thus, it is with both an inspired spirit and heavy heart that we dedicate this year’s Annual Review to those individuals that have faced the beast of impunity head-on, often with an unspeakably high cost to the well-being of their families, their friends, and to themselves, and to all of those individuals, organizations, and institutions that have supported them in their quest for freedom.

*** Impunity Watch would also like to express our sincerest gratitude to Joshua Heintz, Esq., Anthony DiCaprio, Esq., and Professor David M. Crane, for their gracious and constant support of Impunity Watch and its mission. Their generosity and encouragement ensures that we can maintain our intense focus on our mission as we work to further raise the caliber, reach, and effectiveness of our publication and programming.

vi 

 

IMPUNITY WATCH ANNUAL REVIEW 
  Volume 2   
 

2011­2012 

TABLE OF CONTENTS  ARTICLES 
Resurrecting Saul Alinsky in North Africa:
Rules for the Polisario

 

1

Leah Farish, Esq. 
 

Does Being at War Make Them All Warriors?      

 

 

 

 

22 

Categorization of Persons Involved in an Armed Conflict  and Whether   A Different Categorization Would Yield a Different  Result in the Conflicts  in Iraq and Afghanistan 

Jan Fleckenstein    Cultural and Legal Influences and Impediments to Cultivating Peace    and Human Rights in Islamic States  Kevin Hugh Govern 
 

 

54 

NOTES
  Redress for Placement on Government Kill List?   Warren R. M. Popp 
 

 

 

 

 

78 

Justiciability, Separation of Powers, & International Law in Al Aulaqi v. Obama

The Traffick Network:  

 

 

 

 

 

 

 

 

110 

How Social Media  Aids in International Slavery  Alison Owens 

Gender‐Based Persecution as a Basis for Asylum in the United States:  
Structural and Procedural Defects

 

120 

Jacquelyn Grippe 
 

SPECIAL FEATURES
  Reflections on Justice in the Former Yugoslavia   Jennifer Trahan    Notes From Kampala:          Reta Raymond 
 

   

   

   

   

150  155 

A Series of Reflections and First Hand Accounts From a Law Student’s Summer in Uganda 

vii 

 

A Moral Responsibility  Kerry McPhee 
 

 

 

 

 

 

 

 

 

181 

Winning essay in a high school essay contest sponsored by the Summer Institute   for Genocide Studies, the Robert H. Jackson Center, and Impunity Watch. 

NEWS REPORTS 
 

Africa Desk    Cell Phone Videos of Rape by Gadhafi Soldiers Emerge in Libya  June 21st, 2011  Reta Raymond     First Woman Sentenced to Life in Rwanda for Genocide     July 8th, 2011  Tamara Alfred  
 

 

 

184 

 

 

185 

Ghana Moves to Abolish “Witch” Camps         September 21st, 2011  Carolyn Abdenour    Egyptian Blogger’s Nude Photo Launches Global Debate On      Women’s Rights in Arab World  November 21st, 2011  Zach Waksman    Former Ivory Coast President Gbagbo Taken into Custody by ICC;    Charges Filed  November 30th, 2011  Tamara Alfred    Despite British Objection, Nigerian Senate Passes Bill  Banning    Homosexuality  December 1st, 2011  Zach Waksman    Morocco to Revise Rape‐Marriage Law after Shocking Suicide  March 19th, 2012  Zach Waksman    Charles Taylor Guilty of Aiding Sierra Leone Civil War     April 26th, 2012  Tamara Alfred       

 

 

186 

 

 

187 

 

 

190 

 

 

191 

 

 

193 

 

 

195 

viii 

 

Asia Desk    Children with Disabilities Denied Education in Nepal      August 27th, 2011  Jessica Ties    Landmark Death Sentence for Shooter of Unarmed Civilian    August 29th, 2011  Hibberd Kline    Burma’s Armed Forces Accused of Abuses Against Kachin Civilians  October 22nd, 2011  Jessica Ties    Peaceful Protests Turn Deadly in Indonesia         October 31st, 2011  Greg Donaldson 
 

 

 

199 

 

 

200 

 

 

201 

 

 

203 

Kim Jong‐Il: A Legacy of Brutality    December 24th, 2011  Hibberd Kline    Tibetan Anger Leads to Self‐Immolations   April 2, 2012  Greg Donaldson      Europe Desk 
 

 

 

 

 

 

204 

 

 

 

 

 

207 

Human Rights Chief Condemns European Participation in US      Counter‐Terrorism Efforts  September 3rd, 2011              Alexandra Halsey­Storch    Germany, Italy in Legal Bout Over WWII Reparations      September 15th, 2011  Terance Walsh    Atmosphere of Impunity Surrounds Disabled People, Says       Commissioner of Human Rights  October 22nd, 2011  Alexandra Halsey­Storch    UK Parliament Calls For Sanctions on Russia For Magnitsky Death  March 9th, 2012  Terance Walsh 

     

 

209 

 

210 

 

 

212 

 

 

214 

ix 

 

Middle East Desk    Israel Arrests Pro‐Palestinian Activists; Dozens More Detained    July 10th, 2011  Zach Waksman    Amnesty International Reports Patients Tortured in Syrian Hospitals  October 30th, 2011  Carolyn Abdenour    Saudi Blogger Arrested in Malaysia for Tweets About the Prophet       Mohammed  February 10th, 2012  Tyler Yates 
 

 

217 

 

219 

 

220 

Red Cross Denied Access to Civilians as Shelling Continues in Syria    March 5th, 2012  Adom M. Cooper 
   

 

222 

North America & Oceania Desk    No Immunity for Rumsfeld in Suit Regarding Tortured U.S. Citizens  August 13th, 2011  Brianne Yantz    Significant Victory for Indigenous Women in Military Rape Cases     in Mexico  August 20th, 2011  Brianne Yantz    Troy Davis Faces Execution for Fourth Time; Human Rights Groups    Seeks Clemency  September 9th, 2011  Brittney Hodnik    Australia to Deport First Afghan Asylum Seeker      November 14th, 2011  Brittney Hodnik    Guatemala Sentences Former Soldier to 6,060 Years in Prison  March 13th, 2012  Brittney Hodnik        

 

 

224 

 

 

225 

 

 

226 

 

 

228 

 

 

229 

 

South America Desk    Uruguayan Peacekeepers in Haiti Under Investigation for Physical and    Sexual Assault of a Local  September 5th, 2011  Paula Buzzi     Thousands of Forced Sterilization Case Reopened in Peru      November 14th, 2011  Emilee Gaebler    Brazilian Police Forcibly Evict Thousands from Pinheirinho Settlement   January 25th, 2012  Emilee Gaebler     Ecuador Continues Campaign to Close Rehabilitation Clinics that Use     Torture to “Cure Homosexuality”  February 1st, 2012   Emilee Gaebler 
           

 

231 

 

232 

 

234 

 

236 

xi 

 

Resurrecting Saul Alinsky in North Africa: Rules for the Polisario By Leah Farish, Esq.* Recently, New York Post writer Richard Miniter finished a critical piece on Algeria’s Polisario by saying that the Polisario “would rather rule in hell than serve in heaven.”1 This is an apt description of the flinty leaders of a handful of malnourished camps in the desert who call themselves a nation, all the while resisting the blandishments of a comfortably prosperous Morocco (capital, Rabat) next door. It is also John Milton’s description of Satan in Paradise Lost.2 Saul Alinsky’s classic tool for community agitation, Rules for Radicals, hails Satan for the same reason: as “ . . . the very first radical known to man who rebelled against the establishment and . . . won his own kingdom—Lucifer.”3 While the Polisario are by no means the devil personified, they just may have been rifling Alinsky’s dark bible for strategies as they struggled to establish their own kingdom: the Sahrawi Arab Democratic Republic (SADR). The Polisario started as a left-wing student movement in the 1960’s and 1970’s, cherishing the examples of Ché Guevara and Fidel Castro in part because of the link to Hispanic

                                                             

* Leah Farish is a civil rights attorney and a volunteer with Teach the Children International.
1

Richard Miniter, Letting Another Qeada Bastion Grow, N.Y. POST, Nov. 1, 2010, http://www.nypost.com/p/news/opinion/opedcolumnists/letting_another_qaeda_bastion_grow_K 4ZwpV5YwReZKXQjUd64FP.
2

See generally JOHN MILTON, PARADISE LOST (John Leonard ed., Penguin Classics 2000) (1667).
3

SAUL D. ALINSKY, RULES FOR RADICALS: A PRAGMATIC PRIMER FOR REALISTIC RADICALS ix (1971). 1

 

Marxism that was left behind when Spain pulled out of the “Spanish Sahara.”4 Riding the momentum of decolonization, the young activists next aspired to claim the whole “liberated” territory, an area about the size of Colorado. However, unlike most rebels, they had camped outside their “country,” and neighboring Algeria took them in and gave them use of an old military installation called Tindouf. Some indigenous Saharans (Saharawi) joined them there; others wanted to gather there to demonstrate in favor of independence for what they now called Western Sahara, but then were not permitted to leave.5 Many say they were essentially

kidnapped and/or taken to Tindouf to swell the ranks or to provide some professional services.6

                                                             
4

See Pablo San Martín, ‘¡Estos Locos Cubarauis!’: the Hispanisation of Saharawi Society (. . . after Spain), 7 J. OF TRANSATLANTIC STUDIES 249, 251-52 (2009); see also Getting to ‘‘Yes’’: Resolving the 30-Year Conflict over the Status of Western Sahara: Hearing Before the Subcommittee on Africa, Global Human Rights and International Operations of the Committee on International Relations, 109th Cong. 16 (2005) (statement of Hon. Lincoln Diaz-Balart); S.E. Cupp, A New Desert Hotbed for Terror, TOWNHALL, Sept. 2009, at 60, 61.
5

Interview with Mhamed Lamine, Escapee, in Dakhla, Morocco (July 23, 2010); Interview with Mhamed Lamine, Escapee, in Dakhla, Morocco (May 11, 2011); Interview with Mbarka Bouaida, Member, Moroccan Parliament, in Rabat, Morocco (July 27, 2010); Interview by Nancy Huff with Dakhna Bara, Escapee, in LaAyoune, Morocco (July 24, 2010); Saadani Maoulainie, Moroccan Saharawi Stories in Refugee Camps, WESTERNSAHARAONLINE, http://www.westernsaharaonline.net/misc/news_desc_stories.cfm?ItemID=5301J64440B89A541 (last visited Feb. 10, 2011); see generally THOMAS HOLLOWELL, ALLAH’S GARDEN: A TRUE STORY 62-96 (2009).
6

Interview with Mhamed Lamine, Escapee, in Dakhla, Morocco (July 23, 2010); Interview with Mhamed Lamine, Escapee, in Dakhla, Morocco (May 11, 2011); Interview with Mbarka Bouaida, Member, Moroccan Parliament, in Rabat, Morocco (July 27, 2010); Interview by Nancy Huff with Dakhna Bara, Escapee, in LaAyoune, Morocco (July 24, 2010); Saadani Maoulainie, Moroccan Saharawi Stories in Refugee Camps, WESTERNSAHARAONLINE, http://www.westernsaharaonline.net/misc/news_desc_stories.cfm?ItemID=5301J64440B89A541 (last visited Feb. 10, 2011); see generally THOMAS HOLLOWELL, ALLAH’S GARDEN: A TRUE STORY 62-96 (2009). 2

 

The young activists running the Tindouf camps, which originally contained over 150,000 residents,7 showed remarkable astuteness in organizing themselves. They constructed an

elaborate representative, a one-party government for their “nation-in-exile” that has endured for thirty-five years.8 Making a virtue of necessity, the SADR accorded women plenty of leadership while the men were off on skirmishes with Morocco, trade missions, or mine-planting expeditions.9 Living their Maoist dream, the Polisario deconstructed family, and to some extent tribal identity, and made it a punishable crime to use any terminology denoting extended family.10 “The dismantling of all the tribal and patriarchal traditions gave the Saharawi a unique opportunity to promote their liberation cause.”11 In doing so they took a page from Rules for Radicals: “All change means disorganization of the old and organization of the new.”12 Schooling was initiated for the children, and literacy among both women and children improved.13
                                                             
7

See Tim Judah, Background: The Forgotten Conflict, BBC NEWS, Jan. 27, 1999, http://news.bbc.co.uk/2/hi/africa/264052.stm.
8

See S. Rossetti, Formal and Informal Gender Quotas in State-Building: The Case of the Sahara, Arab Democratic Republic, UNIVERSITY OF WOLLONGONG RESEARCH ONLINE 10-12 (July 2008), available at http://ro.uow.edu.au/cgi/viewcontent.cgi?article=1182&context=artspapers
9

See Rossetti, supra note 8 at 15-16.

10

Interview with Laamar Sidi Brahim, Escapee, in Dakhla, Morocco (July 23, 2010); see also San Martín, supra note 4, at 252-53, 259.
11 12 13

Rossetti, supra note 8, at 13. ALINSKY, supra note 3, at 116.

Background to the Western Sahara Conflict, FORCED MIGRATION ONLINE, http://www.forcedmigration.org/research-resources/expert-guides/sahrawi-refugee-children-in-aspanish-host-program/background-to-the-western-sahara-conflict (last updated Sept. 23, 2011). 3

 

If one classroom observation was typical, then education was used as a means of propaganda: a teacher would rap on the desk as a signal for pupils to start the chant, “Kill the king! Kill the king [of Morocco]!”14 One Saharawi remembers growing up in the camps with a picture of Karl Marx on the wall; another recalls being taught to hate Morocco and America. A common type of math problem given in Cuba was, “[i]f there are ten Americans and you kill seven, how many will be left?”15 Thousands of children were sent to the ideological homeland, Cuba, for education starting as early as first grade,16 and continued schooling through high schools in Cuba, Algeria or Libya. Promising students, and children of the Polisario leaders, somehow found means to attend college in Europe.17 Returning from campus to camp naturally proved difficult, but was required.18 Now, after thirty-five years of hardship, uncertainty, and isolation, those in the camps manifest depression and schizophrenia at alarmingly high rates.19 Food and water are scarce in the harsh environment called the Devil’s Garden. The Algerian and Saharawi Red Crescents, the United Nations High Commissioner for Refugees
                                                             
14

Interview with Nancy Huff, President, Teach the Children International, in Boujdour, Morocco (July 24, 2010).
15

Lamine, supra note 6 (July 2010; May 2011); Interview with Sadani Maoulainie, Escapee, in LaAyoune, Morocco (Nov. 7, 2009).
16

Lamine, supra note 6 (July 2010; May 2011); Interview with Sadani Maoulainie, Escapee, in LaAyoune, Morocco (Nov. 7, 2009).
17

Interview with Salka Omari, Escapee, in Dakhla, Morocco (July 23, 2010); see Main Finding and Provisional Recommendations, JOINT WFP-UNHCR ASSESSMENT MISSION 9 (Jan. 26, 2004), http://documents.wfp.org/stellent/groups/public/documents/ena/ wfp036323.pdf [hereinafter WFP-UNHCR]; see also Samuel Loewenberg, Displacement is Permanent for the Sahrawi Refugees, 365 THE LANCET 1296 (2005), available at http://www.thelancet.com/ journals/lancet/article/PIIS0140-6736(05)61010-0/fulltext.
18 19

San Martín, supra note 4, at 254-59. Loewenberg, supra note 17. 4

 

(UNHCR), the World Food Programme, and humanitarian groups such as Teach the Children International, have made various attempts at trucking in food or water.20 However, camp dwellers and humanitarian workers began to notice that aid was being diverted. The Polisario would ask for containers full of one item only, which is easier to trade,21 and cooking oil with aid labels would show up on the black market shelves in Mauritania.22 Of a caravan of trucks carrying donations from an Algerian port, one or more would be spotted veering off the route, never to be seen again.23 One Saharawi man described being tortured with burns and sticks when he would not lie about a new medical scanner being broken; he said he knew it was broken to obtain mercury for making explosives.24 Another woman told of having to trade sex with Cuban food distributors in order to get her food ration.25 There was definitely trouble in paradise—or rather, in hell—as malnourishment occurred along with anemia, blood pressure problems and diabetes.26 Recently, in light of the Polisario
                                                             
20

Saharawi Arab Democratic Republic Ministry of Public Health, Nutritional and Food Security Survey Among the Saharawi Refugees in Camps in Tindouf, Algeria, 9-12, 53 (2008), http://www.vastsaharaaktionen.se/files/Nut.surv_.Version%20EN%20oct_08.pdf.
21

Huff, supra note 14; see generally Interview with Ali Salem, in LaAyoune, Morocco (Apr. 29, 2011); Merrill Smith, Stonewalling on Refugee Rights: Algeria and the Sahrawi, U.S. COMM. FOR REFUGEES & IMMIGRANTS 12 (2009), http://www.uscrirefugees.org/2010Website/3_Our% 20Work/3_2_1_3_Morocco/Stonewalling.pdf.
22

See generally Getting to ‘‘Yes’’: Resolving the 30-Year Conflict over the Status of Western Sahara: Hearing Before the Subcomm. on Africa, Global Human Rights and Int’l Operations of the H.R. Comm. on Int’l Relations, 109th Cong. 84 (2005) (statement of Mr. Gordon Gray) [hereinafter Gray].
23 24 25 26

Lamine, supra note 6 (July 2010; May 2011). Interview with Abd Slaimifrisni, Escapee, in LaAyoune, Morocco (Nov. 7, 2009). Interview with Sallakha El Bachir, Escapee, in LaAyoune, Morocco (July 24, 2010). Loewenberg, supra note 17, at 1295; see WFP-UNHCR, supra note 17, at 3; SAHARAWI, supra 5

 

Front's continued refusal to allow UNHCR to conduct a registration of the refugee population, UNHCR and the World Food Programme (WFP) agreed that the official number of food aid beneficiaries should be reduced from 158,000 to 90,000.27 The Polisario insists that the number is 160,000 and Algeria says it is 165,000.28 It was foreseeable that complaints would begin to surface in the camps, and the Polisario had to maintain order among disgruntled folks who were living in tents or concrete buildings in 130-degree summer heat, with floods, sand storms, and cold temperatures in other seasons. Discipline was peremptory and sometimes cruel.29 The court system that functions in Tindouf, commendably on some occasions, was not always utilized; rather the Polisario favored nighttime disappearances, beatings, and the separation of families.30 Children were warned that if they escaped, they would be “killed with a red truck,” or that if they reached Morocco, Moroccans

                                                                                                                                                                                                    

note 19, at 11.
27

Gray, supra note 22, at 84; see also Smith, supra note 21, at 3 (The U.S. Committee for Refugees and Immigrants (USCRI) estimates there are at a maximum 90,000 people in the camps).
28

Stephanie Koury, The European Community and Member States’ Duty of Non-Recognition under the EC-Morocco Association Agreement, in INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 180, note 77 (Karin Arts & Pedro Pinto Leite, eds., IPJET 2007); WFPUNHCR, supra note 17, at 1.
29

Smith, supra note 21, at 3; see also Interview with Ahmadou Souilem, Former Member, Polisario Camp Leadership, in N.Y.C., N.Y. (Apr. 8, 2010); Omari, supra note 17; see also Interview with Gahouana Quballa, Escapee, in LaAyoune, Morocco (July 24, 2010); Interview with Essaadi Lemania, Escapee, in LaAyoune, Morocco (July 24, 2010).
30

HUMAN RIGHTS WATCH, HUMAN RIGHTS IN WESTERN SAHARA AND IN THE TINDOUF REFUGEE CAMPS 118, 120 (2008), available at http://www.hrw.org/reports/2008/12/19/human-rightswestern-sahara-and-tindouf-refugee-camps; HOLLOWELL, supra note 6, at 88-91; Smith, supra note 21, at 7-8. 6

 

would inject them with a solution that would paralyze them.31 One man told Congress about people in the camps being disposed of in a cement mixer or left to die in holes.32 Another person told the UN of people being forced to cut, roast, and eat their own flesh, and of other victims of dental torture and even crucifixion.33 Additional reports have detailed children seeing their parents tortured or killed,34 while others have described the enslavement of black Africans.35 People who attempted to function as journalists have stated that they were censored; in one case, was detained for months.36 The Polisario’s ideals had been lofty but, in Saul Alinsky-fashion, their ends justified their means. Alinsky would have approved the stern tactics needed to control the Saharawi; he once wrote, “[t]o attempt to operate on a good-will rather than on a power basis would be to attempt something that the world has not yet experienced.”37 He also wrote, “[i]n a fight almost anything goes. It almost reaches the point where you stop to apologize if a chance blow lands above the

                                                             
31 32

Brahim, supra note 10; see also Bachir, supra note 25; Maoulainine, supra note 15.

Getting to “Yes”: Resolving the 30-Year Conflict Over the Status of Western Sahara: Hearing Before the Subcomm. on Africa, Global Human Rights and Int’l Operations of the H.R. Comm. on Int’l Relations, 109th Cong. 57-58 (2006) (statement of Ali El Jaouhar, Former Moroccan Prisoner of War).
33

U.N. GAOR, 65th Sess., 5th mtg., U.N. Doc. A/C.4/65/SR.5 (Oct. 7, 2010), available at http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N10/573/01/PDF/N1057301.pdf?OpenElement
34 35

Maoulainie, supra note 15; Brahim, supra note 10.

HUMAN RIGHTS WATCH, supra note 30, at 11; Interview with Adahamedi Ben Mahmoud, Escapee, in LaAyoune, Morocco (Nov. 9, 2009).
36 37

Brahim, supra note 10; Lamine, supra note 6 (July 2010; May 2011). ALINSKY, supra note 3, at 119. 7

 

belt.”38 The fight through the years has been over how much self-rule the Saharawi will and should have when they resettle someday in the region they historically lived in as nomads. A vote on the particulars of Saharawi self-rule would provide the self-determination that the UN wants to see, but no one can agree on who would be counted as a voter. The SADR emphasizes the use of a census that the Spanish took as they were pulling out; Rabat has always wanted more inclusion of tribal connections, documented orally, as well as inclusion of settlers who have lived in the region for a few years.39 Naturally, the larger the number of settlers and others with ties to Morocco proper, the more favorable the outcome of the vote for Rabat. Hence both sides want to bolster their numbers. To keep up population levels that would also justify requests for food and guns, the SADR needed to maximize camp population. Whereas the original population may have been as high as 150,000, it is now estimated to be about 90,000.40 Practically no one feels free to depart the camps, though some do travel to other destinations with relative ease. Those who do wish to leave for good (as many as nine out of ten in a 2006 poll)41 must make secret travel arrangements, and leave belongings behind so as not to reveal their objective.42 Women are urged to reproduce, occasionally being forced to take a
                                                             
38 39 40

See id. at 24, 29, 129-30. See ERIK JENSEN, WESTERN SAHARA: ANATOMY OF A STALEMATE 81-83, 94, 104-110 (2005).

Abbas Shiblak & Greg Constantine, Statelessness Around the World, 32 FORCED MIGRATION REV. 37, 39-41 (2009), available at http://www.fmreview.org/FMRpdfs/FMR32/FMR32.pdf.
41 42

Smith, supra note 21, at 6. HUMAN RIGHTS WATCH, supra note 30, at 125-28; Smith, supra note 21, at 7. 8

 

second husband if one went missing.43 Tindouf inhabitants have been warned that if they were lucky enough to escape to Morocco, they would be imprisoned or killed.44 No documentation of such Moroccan behavior appears to exist, but with little to no media and communication available to the camp dwellers (especially in the early years), illusions have doubtless been easy to create.45 When the UNHCR began “confidence-building measures” to allow family visits to Morocco and Mauritania, some writers trumpeted the fact that only a few of those who were allowed to go on these visits failed to come back to the camps.46 But often this was because whole families were not allowed to leave together, so that visitors were faced with abandoning their relatives who couldn’t leave the camps.47 Individuals who spoke out against the Polisario in the camps,48 or while outside on a family visit, were retaliated against upon return.49 Despite these measures, it was necessary to go on the offensive, to find an enemy to focus the peoples’ anger on while they waited for a place to settle permanently—Alinsky says that
                                                             
43

Interview with H.B., Escapee, in Dakhla, Morocco (July 23, 2010); U.N. GAOR, 65th Sess., 5th mtg. U.N. Doc GA/SPD/453 (October 7, 2010), available at http://www.un.org/News/Press/docs/2010/gaspd453.doc.htm.
44 45 46

HUMAN RIGHTS WATCH, supra note 30, at 125. With the advent of cell phones, this is changing.

Edward Benson, Confidence-Building Measures in Western Sahara, FORCED MIGRATION REV. 57 (2009), available at http://www.fmreview.org/FMRpdfs/FMR33/56-58.pdf.
47

Interview with Afia Hmaidi, Escapee, in Dakhla, Morocco (July 23, 2010); HUMAN RIGHTS WATCH, supra note 30, at 128.
48 49

Smith, supra note 21, at 3; Omari, supra note 17; Brahim, supra note 10.

Leigh Anne Arnold, Sidi Mouloud Shot Attempting to Escape Algerian, Polisario Captors, CHRISTIAN NEWSWIRE, Nov. 1, 2010, http://www.christiannewswire.com/ news/2917615372.html; Bachir, supra note 25. 9

 

although goals may be fluid, there must be “a target upon which to center the attacks.”50 Of course, Morocco, administering the non-self-governing territory of Western Sahara, which it calls Southern Morocco or Moroccan Sahara, is the natural target. Mauritania released its claims to the area in April 1979, and, currently, the UN merely monitors the ceasefire between Morocco and the Polisario, with modest forces both in Tindouf and in Western Sahara (called the U.N. Mission for the Referendum in Western Sahara (MINURSO)).51 A primary way for the Polisario to plague Morocco is through attacks on its human rights record, which is spotty when it comes to entertaining protests about the disputed territory, though the country has “increasingly free and fair elections, and growing attention to civil liberties and the principles of rule of law . . .”52 Focusing on human rights abuses is a wise SADR strategy for several reasons: it gets the attention of wealthy and educated Moroccan, North American and European players, it is low in cost to conduct, and creates sympathy for the Polisario, deflecting attention from their own human rights abuses.53 Even if they are questioned about what goes on
                                                             
50

ALINSKY, supra note 3, at 131; See generally Toby Shelley, Resistance and Colonialism: Building the Sahrawi Identity, in INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 35 (Karin Arts & Pedro Pinto Leite, eds., IPJET 2007).
51 52

See generally JENSEN, supra note 39; HUMAN RIGHTS WATCH, supra note 30, at 26-27.

Why the Maghreb Matters: Threats, Opportunities & Options for Effective US Engagement in North Africa, POTOMAC INSTITUTE, 6 (2009), http://www.potomacinstitute.org/images/studies/ NorthAfricaPolicyPaper033109.pdf; but see Sidi M. Omar, The Position of the Frente Polisario, in INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 38 (Karin Arts & Pedro Pinto Leite, eds., IPJET 2007); Toby Shelley, Sons of the Clouds, RED PEPPER, Feb. 8, 2011, http://groups.yahoo.com/group/Sahara-Update/message/1985; see also M. Abbas El Fassi S’entretient vec une Delegation Parlementaire Francaise, MOROCCO NEWS, Jan. 28, 2011, http://www.actu-maroc.com/politique/politique/2293-m-abbas-el-fassi-sentretient-avec-unedelegation-parlementaire-francaise.html.
53

See Patrick Worsnip, UN Council Favors Informal Talks on Western Sahara, REUTERS, Apr. 30, 2009, http://www.reuters.com/article/2009/04/30/us-sahara-un-idUSTRE53T8NM20090430; Alle, Meet the New Polisario, Same as the old Polisario, WESTERN SAHARA INFO. BLOG (Dec. 10

 

in the camps, discussing the two situations puts the camp leaders on par with an ancient and well-established sovereign nation. Righteous indignation is an important feature of the

asymmetric warfare the Polisario has to wage. Thus, although scholars and humanitarians can endlessly scrutinize the “performance of civil rights”54 throughout Morocco and measure it against international law, the SADR is not a state under most definitions, and therefore international law is rarely applied to the Polisario. In November 2010, a weeks-long demonstration in LaAyoune, in southern Morocco, finally went sour after a month of pro-independence advocacy outside the town. Wildly varying reports of casualties on both sides55 indicates the premium put on spin by both sides. Timed to add pressure to imminent negotiations in New York, the tent protest was “an act of political opportunism,” said one Saharawi Moroccan official, while demonstrators spoke openly about how they chose their message: the “protest’s focus on bread and butter issues was a deliberate calculation.” One protester said, “[t]he social issues hide the other issues.” Flags and other Polisario symbols were not displayed, out of stated fears of provoking Moroccans.56 This
                                                                                                                                                                                                    

27, 2009), http://w-sahara.blogspot.com/2007/12/meet-new-polisario-same-as-old.html.
54

Lauri Hannikainen, The Case of Western Sahara from the Perspective of Jus Cogens in INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 63-71 (Karin Arts & Pedro Pinto Leite, eds., IPJET 2007).
55

Colum Lynch, U.N. Asked to Investigate Violence in Western Sahara, WASHINGTON POST, Nov. 16, 2010, http://www.washingtonpost.com/wpdyn/content/article/2010/11/16/ AR2010111602813.html; YEMEN MAGAZINE, New Violence Reported in Western Sahara, Nov. 10, 2010, http://www.yemag.com/news/new-violence-reported-in-western-sahara.html; ARAB RESOURCE AND ORGANIZING CENTER, CIVIL UNREST SPREADS IN WESTERN SAHARA. BLOG (Nov. 9, 2010), http://www.araborganizing.org/blog/archives/228 [hereinafter ARAB RESOURCE].
56

Lamine Ghanmi, Western Sahara Protest Camp Tests Morocco’s Nerve, REUTERS, Nov. 9, 2010, http://www.reuters.com/article/2010/11/07/us-morocc0-sahara-protestidUSTRE6A61I920101107?feedType=RSS&feedName=worldNews&rpc=22&sp=true. 11

 

approach would have warmed Alinsky’s heart: “goals must be phrased in general terms like . . . ‘Bread and Peace.’”57 Present-day partners with “left/radical social movements” have expressed support of the demonstration.58 Alinsky preached that “[t]he real action is the enemy’s reaction, [and the] enemy properly goaded and guided in his reaction will be your major strength.”59 The tent city and various marches and demonstrations against Morocco are actions that need only wait for one Moroccan civilian, soldier, or police, to overreact or fail to act. “Any attack against the status quo must use the strength of the enemy against itself . . . they can constantly be pushed to live up to their own book of morality and regulations,” Alinsky gleefully noted.60 Another example of Alinsky’s tactics is the carefully staged campaign of Aminitou Haidar. After years of highly-visible campaigns against Morocco while living comfortably in the South, on her return from receiving an activism award in the U.S. she left the “Citizenship” line blank on the customs form and wrote “Western Sahara” as her address. She was detained and then deported to the nearby Canary Islands for insisting on re-entry, while apparently renouncing her Moroccan citizenship.61 U.S. and European human rights organizations railed against

                                                             
57 58

ALINSKY, supra note 3, at 45.

ARAB RESOURCE, supra note 55; ARAB RESOURCE AND ORGANIZING CENTER, Partners, http://www.araborganizing.org/about-us/partners (last visited Apr. 23, 2011).
59 60 61

ALINSKY, supra note 3, at 136. Id. at 48-49.

Erik German, Why Morocco Welcomed Human Rights Activist Aminatou Haidar Home by Arresting Her, CHRISTIAN SCIENCE MONITOR, Nov. 17, 2009, http://www.csmonitor.com/ World/Middle-East/2009/1117/p06s10-wome.html. 12

 

Moroccan cruelty.62 She was eventually re-admitted after engaging in a hunger strike that was carefully followed by some media, and she earned kudos for her intrepid opposition to the King.63 Alinsky assured the activists of the 1970’s that “[y]ou can club them to death with their ‘book’ of rules and regulations”64 because, especially in a novel situation like being presented with a claim of “Western Sahara” citizenship, they will more likely falter and do something inappropriate. As Rules for Radicals advises, “[w]herever possible, go outside of the experience of the enemy.”65 Such creativity is suggested by the trend in the use of the term “performance” of rights or laws. For Susan Slyomovics and others, the term refers to such “behavior associated with enacting human rights onto the public arena” as mock trials, sit-ins, rallies, slogans, graffiti, and hunger strikes.66 Other Western Polisario admirers can be associated with these tactics as well as with anarchy and economic upheaval, apparently including one “paper [which says it] was
                                                             
62

Alle, Morocco vs. Aminatou, MAGHREB POLITICS REVIEW (Dec. 8, 2009), http://maghrebinenglish.wordpress.com/2009/12/08/morocco-vs-aminatou/; Alle, Aminatou Update, MAGHREB POLITICS REVIEW (Dec. 17, 2009), http://maghrebinenglish.wordpress.com/2009/12/17/aminatou-update/.
63

Amnesty International Welcomes Aminatou Haidar’s Return to Western Sahara, AMNESTY INTERNATIONAL (Dec. 18, 2009), http://asvdh.net/3914; see also Shelley, supra note 50, at 31; Owei Lakemfa, Western Sahara: Aminatou Haidar—The Shame of Spain, ALLAFRICA GLOBAL MEDIA (Dec. 17, 2009), http://allafrica.com/stories/200912170996.html.
64

ALINSKY, supra note 3, at 127, 157. For instances of breakdowns of Moroccan justice regarding protesters, thoroughly scrutinized, see HUMAN RIGHTS WATCH, supra note 30, at 3965, and the painstaking Moroccan response, see id. at 159-173.
65 66

ALINSKY, supra note 3.

SUSAN SLYOMOVICS, THE PERFORMANCE OF HUMAN RIGHTS IN MOROCCO 9 (2005); Jacob A. Mundy, Performing the Nation, Pre-figuring the State: the Western Saharan Refugees, Thirty Years Later, 45 J. MOD. AFR. STUD. 275, 297 (2007), available at http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=1012524. 13

 

supported by a grant from the Institute for Anarchist Studies.”67 Toby Shelley’s book favoring the Polisario was, according to sources, published “in association with War on Want,” which boasts a “leading role in the global movement fighting [free trade] agreements . . . [with] millions [who] have taken to the streets to . . . help change the rules of the global economy for good.”68 The Polisario has sometimes echoed Alinsky’s tactics at the level of negotiations with Morocco: on two occasions surprising the other side and onlookers by unexpectedly acceding to demands.69 This “calling of the bluff” has more than once caught the larger and less-agile monarchy off-guard and made Morocco appear to be negotiating with less than sincere resolve. For example, in 2003 the “Baker Peace Plan” tried to resolve the dispute over Western Sahara by allowing a vote by the Saharawi named on MINURSO’s and UNHCR’s provisional voter lists and those residing in the territory since 1999.70 The referendum was to take place about four years from then, a lingering time of uncertainty that the Moroccans disliked.71 “In an astute tactical move . . . the Frente Polisario sprang a surprise” and accepted the plan as the basis for

                                                             
67

Josephine Bjelkholm, Gothenburg Post: Greenpeace Stops Vessel, WESTERN SAHARA RESOURCE WATCH (June 11, 2008), http://www.wsrw.org/index.php? parse_news=single&cat=105&art=744; see also Mundy, supra note 66, at 275; Gael Murphy, Another World is Possible, CODEPINK (Jan. 23, 2006), http://www.codepinkalert.org/article.php?id=765.
68

Trade Justice, WAR ON WANT, http://www.waronwant.org/past-campaigns/trade-justice (last visited April 2, 2012); see generally TOBY SHELLEY, ENDGAME IN THE SAHARA: WHAT FUTURE FOR AFRICA’S LAST COLONY? (2004).
69 70 71

ALINSKY, supra note 3, at 130. JENSEN, supra note 39, at 110-112. Id. 14

 

moving forward—Morocco “had presumably counted on Polisario’s rejection and was thoroughly bemused.”72 Disruption can be almost inevitable when the sand shimmers with heat and mirages, and one’s destiny has been stalled for thirty-five years. Or as Alinsky observed, “[p]eople hunger for drama and adventure,”73 and if that was true for Alinsky’s 1960’s Americans, it is certainly true for those languishing in the camps and even their leaders. Around 1988, camp residents began to see a change for the worse among the Polisario. After the ceasefire between Morocco and the Polisario in 1991, guns piled up unused and the Polisario became restless and unresponsive to the people, skimming off more aid than ever.74 Slavery of black Africans, which was initially frowned upon, returned to the camps.75 Islamists drifted into the camps, teaching jihad against the Polisario to the discontented populace.76 As Chekhov once said, “if you say in the first chapter that there is a rifle hanging on the wall, in the second or third chapter it absolutely must go off.”77 Recruiting for terrorist ranks

                                                             
72 73 74

Id. ALINSKY, supra note 3, at 120.

Omari, supra note 17; Lamine, supra note 6 (July 2010; May 2011); Bara, supra note 6; see generally With the Best of Intentions: Western Sahara , THE ECONOMIST, Sept. 12, 1992, at 44; Edward M. Gabriel, Mercenaries in Libya: Gadhafi's Hired Terrorists, THE HILL (May 16, 2011, 2:21 PM), http://thehill.com/blogs/congress-blog/foreign-policy/161459-mercenaries-in-libyagadhafis-hired-terrorists.
75

Lamine, supra note 6 (July 2010; May 2011); HUMAN RIGHTS WATCH, supra note 30, at 14349; Interview with Ali Salme, Escapee, in LaAyoune, Morocco (Apr. 29, 2011).
76

Lamine, supra note 6 (July 2010; May 2011); Mohamed Cherkaoui, Morocco and the Sahara: Social Bonds and Geopolitical Issues 45 (2d ed. 2007).
77

DONALD RAYFIELD, ANTON CHEKHOV: A LIFE 203 (1997) (quoting Chekhov). 15

 

began with the training and equipping of several Al Qaeda princes.78 The SADR sold some of the plentiful weapons back to Algeria.79 While the Polisario may have initially resisted or not recognized Al Qaeda as such, some welcome it now: “[t]hank God, the appearance of al-Qaeda gave us hope of independence and eradication of the occupation.”80 But the question arises: why does the Polisario not target Algeria, the nation in which it is located? If they so object to the “autonomy” arrangement Rabat has conceived of for them, why is not a nearly identical de facto jurisdictional arrangement in Algeria more offensive? Moreover, under international law, the Saharawi are being unlawfully “warehoused”81 by Algeria, not Morocco. They are not allowed Algerian identification, freedom of movement, or work permits,82 all in violation of international law, including Chapters II and III of the Geneva Convention and the related 1967 Protocol. With work permits, Saharawi can work and move

                                                             
78

See generally Interview by Nancy Huff with Anonymous, Escapee, in LaAyoune, Morocco (July 23, 2010); Abdul Hameed Bakier, Al-Qaeda Infiltration of the Western Sahara's Polisario Movement, 8 TERRORISM MONITOR (May 13, 2010), http://www.jamestown.org/programs/gta/single/?tx_ttnews%5Btt_news%5D=36385&tx_ttnews %5BbackPid%5D=457&no_cache=1; Claude Moniquet et al., The Polisario Front and the Development of Terrorism in the Sahel, EUR. STRATEGIC INTELLIGENCE & SEC. CTR. (May 2010), http://www.esisc.net/TEWN/pdf/419598541_EN6.pdf.
79

Lamine, supra note 6 (July 2010; May 2011). More recently, the Polisario may have turned their surplus to profitable use as mercenaries in support of Moammar Qaddafi in rebuffing insurrection. See Libyan Opposition Denounces Recruitment of 'Polisario' Mercenaries to Quell Insurrection—News Agencies, MOROCCO NEWS AND PRESS REVIEWS, Feb. 28, 2011.
80 81

Bakier, supra note 78.

Richard Black, Putting Refugees in Camps, 2 FORCED MIGRATION REV. 4, 4 (Aug. 1998); CAITLIN DEARING, GROUP RIGHTS AND INT’L LAW: A CASE STUDY ON THE SAHRAWI REFUGEES IN ALGERIA 49-50 (Jean AbiNader ed., 2009).
82

Smith, supra note 21, at 2. 16

 

about until a resolution is reached; with a refugee identification card they can at least apply for a visa to go elsewhere. The Polisario demand a “referendum” on the fate of the Saharawi, but that does not require that the Saharawi be huddled in the desert together. If they are properly identified, counted, and contacted regarding a vote, Saharans should be able to live anywhere they like pending the vote. By contrast, on March 9, 2011, King Muhammad VI of Morocco instituted a referendum on all sorts of issues, decreeing broad new powers for regionally elected councils83 to either overrule or replace royally appointed governors.84 With this revision of the nation’s constitution, King Muhammad VI confers much of the autonomy most Saharawi want without needing Algeria to buy in on the concept. He also responds to the substance of many of the Saharawi complaints rather than trying to engage with the symbolism of marches and strikes. As he said when demonstrations were spreading from Egypt, “he would not bow to ‘demagoguery and improvisation.’”85 The ugly reality is that Algerian designs on the valuable coastline of Western Sahara make Moroccan sovereignty over its fisheries and ports unacceptable to Algeria, regardless of what the Saharawi population might want. Algerian competition with, and antipathy for, its

                                                             
83 84

Note that the Saharan provinces count as regions.

Eileen Byrne, Moroccan King Announces Referendum on Reform, FINANCIAL TIMES, Mar. 11, 2011, http://www.ft.com/cms/s/0/06b688aa-4b42-11e0-b2c200144feab49a.html#axzz1GeG9hB4G; King Mohammed VI of Morocco Historic Speech, YOUTUBE (March 9, 2011), http://www.youtube.com/watch?v=_T-nNedwfoQ&feature=related.
85

Morocco: King Mohamaed VI Speech, AFRICAN DIPLOMACY, Feb. 24, 2011, http://www.africandiplomacy.com/index.php?option=com_content&view=article&id=510%3Amorocco-king-mohamed-vi-speech&catid=65%3Aafrican-union&Itemid=79&lang=en. 17

 

neighbor also motivates Algeria to secure camps, because they are a thorn in its side, impeding development and creating embarrassment for the Moroccan king.86 Scholars, and even the Polisario, often note parallels between the Polisario/Morocco situation and the Palestinian/Israel situation, and call both “intifadas,” a term also used for the leftist uprising in Bahrain against British presence there.87 However, they rarely note that, similar to the little band of Palestinians that are the funding and sympathies of Saudi and Iranian governments, the Polisario is being backed by Algeria itself, which has reasons to prolong Saharawi anguish (and thus Morocco’s anguish) as long as possible. One scholar calls this the strategy of the Algeria “imperialist,” since SADR control of Western Sahara would amount to Algerian control.88 Among the Saharawi who live in the territory and speak out against

Morocco, two observers admit that there is a “strong transnational component.”89 As the original anti-colonial heroes defect or die off, it appears that Algeria is not only taking over Polisario leadership, but is also bolstering the population of the camps to keep them viable.90 A man who had left the camps returned to them after several years for a family visit
                                                             
86

CHERKAOUI, supra note 74, at 28-9, 178; JENSEN, supra note 39, at 118 (calling the situation “an expensive irritant” to Morocco).
87

Catriona Drew, The Meaning of Self-Determination: “The Stealing of the Sahara” Redux? INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 87 (Karin Arts & Pedro Pinto Leite eds., IPJET 2007); Aminatou Haidar, A Testimony of Human Rights Violations against Saharawis, INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 347 (Karin Arts & Pedro Pinto Leite eds., IPJET 2007); see also Jacob Mundy & Maria J. Stephan, A Battlefield Transformed: From Guerilla Resistance to Mass, Nonviolent Struggle in the Western Sahara, J. MIL. & STRATEGIC STUD., Vol. 8, Iss. 3 (Spring 2006);.
88 89 90

CHERKAOUI, supra note 76, at 28. Mundy & Stephan, supra note 87, at 1.

Bouaida, supra note 6; Omari, supra note 17; Interview with Kher Ahmad, in LaAyoune, Morocco (Nov. 8, 2009). 18

 

and reported that the neighbors he had remembered were gone and that everyone around was Algerian.91 A high-level Polisario defector stated to the New York City Bar Association last year that Algeria is trucking in Algerians who “don’t fit in” and leaving them in the camps.92 Algeria would likely benefit from disruptions in Morocco, and thus they are in step with the Polisario, who were disappointed when the royal succession in Morocco went smoothly.93 One researcher fumes that the UNHCR mandate is to maintain the humanitarian and civilian character of the camps, yet Algerian police and security work with the Polisario to control freedom of movement.94 Apparently they are both to blame for the access that Al Qaeda has to the camps.95 There is another reason why Alinsky’s tactics don’t work in the Algerian regime: they so rarely even purport to live by “the book” of justice and compassion,96 ethical limits which Alinsky would use to trip up the powers that be (“whenever the Haves start living by their book they present a golden opportunity to the Have-nots . . .”).97 Unlike Morocco, Algeria is not a
                                                             
91 92

Brahim, supra note 10.

Souilem, supra note 29 (Apparently there are a lot of defectors: a 2009 poll of Algerian men said that half would “probably or definitely try to reach Europe in the near future”); Jacob Mundy, Bouteflika’s Triumph and Algeria’s Tragedy, MIDDLE E. RESEARCH & INFO. PROJECT (online) (Apr. 10, 2009), http://www.merip.org/mero/mero041009.
93 94

JENSEN, supra note 39, at 118.

Michael Bhatia, Repatriation Under a Peace Process: Mandated Return in the Western Sahara, 15(4) INT’L J. REFUGEE L. 786, 791 (2003).
95

Mideast Unrest Raises Al-Qaida Fears, UNITED PRESS INT’L, Feb. 2, 2011, http://www.upi.com/Top_News/US/2011/02/02/Mideast-unrest-raises-al-Qaida-fears/UPI27811296691849/.
96 97

Smith, supra note 21, at 2; HUMAN RIGHTS WATCH, supra note 30, at 9. ALINSKY, supra note 3, at 153. 19

 

signatory to many UN conventions and treaties that would hold it accountable and subject it to scrutiny. Even where it is obligated, impunity seems to prevail. Regarding the broad picture of Algerian civil rights violations, “[n]ot a single government official, not a single member of the security, [nor a single member of the] military . . . has gone to prison or stood before a truth commission.”98 While Algeria does give the Saharawis ‘refugee’ status, it does not accord them the protections illustrated in the 1951 Geneva Convention or a related 1967 human rights protocol.99 Likewise, the UN has issued over 100 resolutions (though no sanctions) about how Morocco should conduct itself in regard to various issues vis-à-vis the Saharawi (even though Morocco furnishes housing, medical care, education, and even a stipend to Saharawi), but virtually none about Algeria, which warehouses almost as many Saharawi in miserable conditions.100 Interestingly, Rules for Radicals hints that nonviolent techniques such as Gandhi’s only work for a while, and that “the future does not argue for making a special religion of nonviolence”—“new means” will be adopted and “[t]he explanation will be . . . ‘[t]imes have changed.’”101 Nonviolent “performances” of civil rights have been the preferred means in

                                                             
98 99

Mundy, supra note 92. See generally Black, supra note 81, at 4-7.

100

Stephanie Koury, The European Community and Member States’ Duty of Non-Recognition under the EC-Morocco Association Agreement: State Responsibility and Customary International Law, in INTERNATIONAL LAW AND THE QUESTION OF WESTERN SAHARA 165 (Karin Arts & Pedro Pinto Leite, eds., IPJET 2007).
101

ALINSKY, supra note 3, at 42-45. 20

 

Morocco for Polisario-influenced Saharawis to advocate for their rights. However, violence ramped up with a bombing in Marrakesh that was attributed to al Qaeda sympathizers.102 It has been said that the debate over the area started as “another of the ‘proxy wars’” between the US/Western Europe and the Stalinists/Communists that “defined the international system during the Cold War period.”103 It would be tragic if a vestigial organ of the left-like Saul Alinsky tactics keep thousands of people in a wilderness because the Polisario would rather “rule in hell” than serve in a Moroccan Sahara. “To one side,” said Alinsky in a section called Ego, “a leader is a demigod, to the other a demagogue.”104 As petitioner Fatma Saida said to the UN Fourth Committee, “this artificial conflict” is sustaining a “life of hell.”105 Hopefully the Polisario can forsake their demigod status for the good of the people they claim to represent.

                                                             
102

Larry Luxner, Morocco Tries to Reform, While Preserving Stability, WASHINGTON DIPLOMAT, June 12, 2011, http://www.washdiplomat.com/index.php?option=com_content&view =article& id=7869:morocco-tries-to-reform-while-preservingstability&catid=1474&Itemid=428.
103

Caitlin Dearing and Robert Holley, Group Rights and International Law: A Case Study on the Sahrawi Refugees in Algeria, INTER-UNIV. CTR. FOR LEGAL STUDIES 5 (Sept. 2009), http://www.moroccoboard.com/grassroots/1079-group-rights-and-international-law-a-casestudy-on-the-sahrawi-refugees-in-algeria.
104 105

ALINSKY, supra note 3, at 60. Saida, supra note 43. 21

 

Does Being At War Make Them All Warriors? Categorization of Persons Involved in an Armed Conflict and Whether a Different Categorization Would Yield a Different Result in the Conflicts in Iraq and Afghanistan Jan Fleckenstein* On Saturday, February 13, 2010, American, British and Afghan forces swept down on the town of Marjah, Helmand Province, Afghanistan, in an offensive designed to wrest the town from Taliban control.1 Unlike most previous offensives into Taliban-held territory in

Afghanistan, this military action was announced to the region’s inhabitants weeks in advance2 on the theory that the Taliban would abandon the town before the North Atlantic Treaty Organization (NATO)3 forces arrived and that local elders would convince young Afghans not to resist.4 The U.S. and Afghan governments also announced that once secured, the troops would not leave Marjah to be retaken by the Taliban; this time, Coalition forces were in Helmand for the long haul to support the Afghan government’s establishment of control over the province.5
                                                             
*

Jan Fleckenstein, J.D., M.L.S., M.S./I.R.M, Syracuse University. Associate Director, H. Douglas Barclay Law Library, Syracuse University College of Law. A version of this paper was originally submitted in satisfaction of a requirement for Law 840, Laws of Armed Conflict, Professor David M. Crane, Syracuse University College of Law, April 2010.
1

Michael M. Phillips & Matthew Rosenberg, U.S. Starts Afghan Surge, Wall St. J., Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904575059921198076854.html (see also http://online.wsj.com/article/SB10001424052748703382904575059921198076854.ht ml#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26articleTabs%3Dinteractive).
2 3

Id.

NATO joined the military action in Afghanistan that was initially named Operation Enduring Freedom, a U.S.-led defensive action under Article 51 of the United Nations Charter, later sanctioned by U.N. Security Council Resolutions 1379 and 1401. LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT, 3RD ED. 19 (2008).
4 5

Phillips & Rosenberg, supra note 1. Id. 22

 

But once on the ground in Marjah, NATO forces encountered stiff resistance in an initial battle that lasted for fourteen days.6 In the weeks after the battle of Marjah, Afghans and U.S. forces alike complained that the Taliban were still present in the area, killing, beating and intimidating local residents, and even coming to collect compensation from the Marines for property damages in the February offensive. “You shake hands with them, but you don’t know they are Taliban,” Colonel Sakhi said. “They have the same clothes, and the same style. And they are using the money against the Marines. They are buying I.E.D.’s7 and buying ammunition, everything.” 8 The frustration of troops fighting in Afghanistan, who were driving Taliban fighters out of various regions of the country only to have them re-infiltrate villages and towns as soon as U.S., NATO and International Security Assistance Force (ISAF) forces moved on, was echoed by a segment of American public opinion9 and a broader swath of criticism from around the world as to how the U.S. was conducting “its” wars in Afghanistan and Iraq.10 Support for the 2010 surge of troops into Afghanistan was tempered by frustration that, after eight years, the
                                                             
6

Interactive Map: Regional Violence Follow Events in Afghanistan and Pakistan, Day by Day, WALL ST. J. ONLINE, Feb. 13, 2010, http://online.wsj.com/article/SB10001424052748703382904 575059921198076854.html#project%3DAFGHANISTAN-PAKISTAN-HOTSPOTS09%26 articleTabs%3Dinteractive.
7 8

Improvised Explosive Devices.

Richard A. Oppel , Jr., Violence Helps Taliban Undo Afghan Gains, N.Y. TIMES, Apr. 3, 2010, http://www.nytimes.com/2010/04/04/world/asia/04marja.html.
9

Jackie Northam, Afghan Deaths Threaten Support For U.S. Offensive, NATI’L PUB. RADIO, Apr. 23, 2010, http://www.npr.org/templates/story/story.php?storyId=126195738.
10

Jennifer Agiesta & Jon Cohen, Public Opinion in U.S. Turns Against Afghan War, WASH. POST, Aug. 20, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/08/19/ AR2009081903066.html. 23

 

Afghan government led by President Harmid Karzi controlled only 20% of the sovereign territory of Afghanistan.11 Meanwhile, Iraq continued to be plagued by sectarian violence and a growing insurgency, which threatened the scheduled removal of American fighting forces in 2010 and the withdrawal of all U.S. military forces by the end of 2011.12 CAUSES OF FRUSTRATION FOR TROOPS IN AFGHANISTAN AND IRAQ The inability of the U.S. and its allies to decisively defeat al Qaeda and the Taliban in Afghanistan, or to end the sectarian insurgency in Iraq, has raised questions about the sufficiency of international law to govern armed conflicts between a national military and extremist militants, and to control the conduct of militant forces with regard to civilian populations. While armed conflicts between national armies and rebel groups are not new, the laws of armed conflict grew out of the experience of the horrors of war between nations with regularlyconstituted national armies, not civil wars, insurgencies or terrorist plots.13 Additionally, the assertions of the U.S. government under President George W. Bush that the U.S. was engaged in a “global war on terror,” and that the Geneva Conventions did not apply to the conflicts in Iraq and Afghanistan, have raised questions about the role and sufficiency of the laws of war to control the actions of state parties when national armies are arrayed against terrorist groups or
                                                             
11

Eight years after 9/11 Taliban now has a permanent presence in 80% of Afghanistan, ICOS, Sept. 10, 2009, http://www.icosgroup.net/modules/press_releases/eight_years_after_911 (According to the International Council on Security and Development, Taliban forces have moved back into regions once secured by the U.S.).
12

Iraq, N.Y. TIMES ONLINE, http://topics.nytimes.com/top/news/international/countriesand territories/iraq/index.html?scp=2&sq=american%20public%20opinion%20iraq&st=cse (last updated Feb. 24, 2012).
13

See generally Denise Plattner, Assistance to the Civilian Population: the Development and Present State of International Humanitarian Law, INT’L COMMITTEE RED CROSS, June 30, 1992, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/57jmar?opendocument. 24

 

rogue states.14 The wars in Afghanistan and Iraq have pitted the best military in the world against multiple groups of extremist militants, who make up for their lack of numbers and lack of technologically advanced weaponry with their ability to infiltrate civilian populations, their willingness to sacrifice civilian lives, and their use of terror tactics to force civilian cooperation. The presence and role of civilians is the most complicated aspect of the fighting in Iraq and Afghanistan because the insurgents blend with the civilian population: Civilians become unintentional casualties in attacks by U.S. forces, and a high number of civilian casualties are intentionally or collaterally inflicted by the insurgents. These casualties are often blamed on the U.S. and its allies simply due to the U.S. military presence in the country.15 The difficulty in accomplishing military and political goals in this “asymmetric”16 conflict caused political support for military operations in Iraq and Afghanistan to waver, increasing the likelihood that the U.S. would “declare victory and go home,” leaving the Iraqi and Afghan governments to contend with ongoing violence completely on their own.17 The Obama Administration reaffirmed the commitment of the U.S. to international law,
                                                             
14 15 16

GREEN, supra note 3, at 53. See Northam, supra note 9.

Jakob Kellenberger, President of the ICRC, statement to the conference on the challenges for IHL posed by new threats, new actors and new means and methods of war (Nov. 9-10, 2009) (transcript available at http://www.icrc.org/eng/resources/documents/statement/genevaconvention-statement-091109.htm).
17

Mark Landler, NATO Backs Plan to Give Command to Afghans, N.Y. TIMES, Apr. 23, 2010, http://www.nytimes.com/2010/04/24/world/asia/24diplo.html?scp=1&sq=NATO%20Backs%20 Plan%20to%20Give%20Command%20to%20Afghans&st=cse.

25

 

including international humanitarian law.18 The U.S. no longer claims that the armed conflicts in Iraq and Afghanistan are not subject to The Hague Regulations, the Geneva Conventions, and customary international law.19 Nonetheless, compliance with the tenets of international

humanitarian law has been a challenge for the Obama Administration. Distinguishing civilians from belligerents, disposition of detainees captured by the U.S. (including those turned over to the governments of Iraq and Afghanistan), and the use of advanced technology like unmanned drones to carry out attacks —in the hope of killing more belligerents and fewer civilians— raise issues of international humanitarian law that are just as important to understanding the Obama Administration’s challenges in Iraq and Afghanistan as the application of Common Article 3 to persons detained during the Bush Administration was to that administration. THE LEGAL BASIS FOR THE INVASIONS OF AFGHANISTAN AND IRAQ The U.S. launched an attack on the Taliban government that controlled Afghanistan in 2001 in pursuit of al Qaeda, an international terrorist network led by Osama bin Laden20 that hijacked four airplanes and crashed them into the World Trade Center, the Pentagon, and a field in rural Pennsylvania on September 11, 2001, after the Taliban refused to hand over Osama bin Laden,21 who was believed to be hiding out in an al Qaeda stronghold in the mountainous Tora
                                                             
18

President Barak Obama, Remarks by the President at the Acceptance of the Nobel Peace Prize at Oslo, Norway (Dec. 10, 2009) available at http://www.whitehouse.gov/the-press-office/ remarks-president-acceptance-nobel-peace-prize.
19 20

Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Jayshree Bajoria & Greg Bruno, al-Qaeda, COUNCIL FOREIGN REL., Aug. 29, 2011, http://www.cfr.org/publication/9126/.
21

See John F. Murphy, Afghanistan, Hard Choices and the Future of International Law, 85 INT’L L. STUD. 79, 84 (Michael N. Schmitt, ed., Naval War College 2009). 26

 

Bora region of Afghanistan.22 The U.S. invaded Afghanistan pursuant to its right of self-defense under Article 51 of the U.N Charter23 and pursuant to a Congressional Joint Resolution.24 The U.S. did not operate under a U.N. Security Resolution authorizing the use of force, although the U.N. later sanctioned American military action (or at least the resulting regime change in Afghanistan) in Security Council Resolutions 1379 and 1401.25 The U.S. invaded Iraq in 2003. The U.S. sought, but did not get, U.N. support for military action against Iraq on the grounds that Saddam Hussein had the capability to manufacture weapons of mass destruction (WMDs) in violation of prior U.N. Security Council Resolutions and U.N. sanctions and that Saddam Hussein was harboring terrorists.26 U.S. troops invaded Iraq pursuant to a Joint Resolution of Congress27 and defeated the Iraqi Army. Despite the Bush Administration’s contention that, three weeks later, the Iraq war was a “mission accomplished,” the country soon sank into civil war and a recurrent insurgency marked by continued fighting and civilian casualties.28 The U.S. executed a Status of Forces Agreement
                                                             
22

John Bowman, Tora Bora, CBC NEWS ONLINE, Dec. 2001, available at http://web.archive.org/web/20041010142231/http://www.cbc.ca/news/indepth/targetterrorism/ba ckgrounders/torabora.html.
23 24 25 26

U.N. Charter art. 51, available at http://www.un.org/en/documents/charter/chapter7.shtml. S. J. Res. 23, 107th Cong. (2001). GREEN, supra note 3, at 19.

Colin Powell, Secretary of State, United States of America, Presentation to the U.N. Security Council on the U.S. case against Iraq (Feb. 6, 2003), available at http://www.cnn.com/2003/US/02/05/sprj.irq.powell.transcript/.
27 28

H. J. Res. 114, 107th Cong. (2002).

HANNAH FISCHER, CONG. RESEARCH SERV., RL 40824, IRAQ CASUALTIES: U.S. MILITARY FORCES AND IRAQI CIVILIANS, POLICE, AND SECURITY FORCES (2010) available at http://www.fas.org/sgp/crs/mideast/R40824.pdf. 27

 

with Iraq in 2008 that called for all U.S. forces to withdraw no later than December 31, 2011.29 SOURCES AND SCOPE OF THE LAWS OF ARMED CONFLICT International humanitarian law is comprised of international human rights law, codified in the Universal Declaration of Human Rights30 and other human rights treaties, and the laws of armed conflict, also referred to as the laws of war. 31 The laws of armed conflict govern the conduct of hostilities between warring parties. It is codified in the Hague Conventions (1899 and 1907), the Geneva Conventions (1949), Additional Protocols I and II (1977), Additional Protocol III (2005) and other international treaties. For example, the Hague Conventions32 govern the methods and means of warfare and the protection of cultural property. Although limited on their face to the states that are parties to the treaty, the Hague Regulations (1907) have since been recognized, to the extent that they have not been superseded by later instruments, as customary international law that is therefore binding on all parties to an armed conflict.33 Customary law is
                                                             
29

Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organization of Their Activities during Their Temporary Presence in Iraq, Art. 24.1, Nov. 17, 2008, available at http://graphics8.nytimes.com/ packages/pdf/world/20081119_SOFA_FINAL_AGREED_TEXT.pdf.
30

Universal Declaration of Human Rights, G. A. Res. 217 (III) A, U.N. Doc A/RES/217(III) (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/.
31

For a list of international humanitarian law treaties and the countries that have ratified or signed them, see the Treaty Database maintained by the International Committee of the Red Cross, http://www.icrc.org/ihl.
32

See generally Hague Convention (IV): Regulations Respecting the Laws and Customs of War on Land, Oct. 18, 1907; Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954; Geneva Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Oct. 10, 1980.
33

Terry Gill & Elies van Sliedregt, Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’, 1 UTRECHT L. REV. 28, 34, note 25 (2005). 28

 

the “common law” of war.

Customary law includes the rules of warfare that predate

international conventions or that have developed as international conventions are interpreted by State Parties (the countries that have ratified the conventions) and by international and domestic courts. Common Article 3 to the Geneva Conventions (1949) governs the treatment of all persons in time of international or non-international armed conflict.34 prohibits: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees, which are recognized as indispensable by civilized peoples.35 The laws of armed conflict govern only the conduct of military forces engaged in armed conflict. They do not address the circumstances that result in a declaration of war or whether the military action is justified. For example, the laws of armed conflict do not answer the question as to whether the U.S. was entitled under international law to invade Afghanistan when the Taliban government of Afghanistan refused to turn Osama bin Laden over to the U.S., or whether the U.S. was entitled to invade Iraq in order to overthrow Saddam Hussein’s
                                                             
34

Common Article 3

THE GENEVA CONVENTIONS OF 12 AUGUST 1949 : COMMENTARY I (1952) at 38, also available at http://www.icrc.org/ihl.nsf/COM/365-570006?OpenDocument.
35

Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S 135 [hereinafter Geneva Convention III]. The four Geneva Conventions and Two Additional Protocols are available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions#a2. 29

 

government. It does not answer the question of whether regime change (in either Afghanistan or Iraq) is a legal basis for military invasion. The laws of armed conflict set the rules for how an armed conflict is conducted by military forces once hostilities have commenced. It does not govern the actions of a country’s international intelligence agency or of a country’s international law enforcement agency, which are subject to the domestic law of the country and other international agreements that specifically address intelligence and law enforcement.36 APPLICATION OF THE LAWS OF ARMED CONFLICT TO AFGHANISTAN AND IRAQ The laws of armed conflict govern the conduct of warring parties in two kinds of armed conflicts: International armed conflict, defined as an armed conflict between two or more parties who are states, or who are states and rebel groups, and non-international armed conflict, defined as an armed conflict between either states and armed groups, or just armed groups.37 The U.S. and Afghanistan are both parties to the Geneva Conventions.38 The U.S. has
                                                             
36

International humanitarian law and terrorism: questions and answers, INT’L COMM. OF THE RED CROSS: RES. CTR. (Jan. 1, 2011), http://www.icrc.org/eng/resources/documents/faq/ terrorism-faq-050504.html.
37 38

Id.

The U.S. ratified Hague Convention (IV) 1907 in 1909, and the Geneva Conventions in 1955. Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, [hereinafter Hague Convention (1907)], State Parties, available at http://www.icrc.org/ihl.nsf/ WebSign?ReadForm&id=195&ps=P. Geneva Convention, available at http://www.icrc.org/ ihl.nsf/WebSign?ReadForm &id=375&ps=P. Afghanistan ratified the Geneva Conventions in 1956. Geneva Conventions, State Parties, available at http://www.icrc.org/ihl.nsf/WebSign? ReadForm&id=375&ps=P. Whether treaty obligations carry over from a de jure government to a de facto government such as the de facto Taliban government in Afghanistan is assumed for the purposes of this analysis. Since the ICRC lists parties to international conventions by country name, not by government, it must be that a national government in power, even if it overthrows a previous government by force, remains bound by the treaty obligations of its predecessor governments unless the successor government expressly repudiates the treaty, and even then the successor government would be bound by customary international law. 30

 

not ratified Additional Protocols I, II, or III, but it complies with the provisions of those three protocols to the extent that they represent the codification of customary international law.39 Under the Third Geneva Convention, the military forces of a state party to the armed conflict are lawful combatants.40 A non-state party to an armed conflict may be recognized as a lawful combatant party to the armed conflict if it is a militia or other volunteer corps, including organized resistance movements, “belonging to a [state] party to the conflict” if they fulfill the conditions of being in a chain of military command, “having a fixed distinctive sign recognizable at distance,” “carrying arms openly,” and “conducting their operations in accordance with the laws and customs of war [emphasis added].”41 Additional Protocol I removes the requirement that a non-state party to an armed conflict have a fixed distinctive sign recognizable at a distance.42 The U.S. has not ratified Additional Protocol I, in part due to the belief that removal of the requirement for a fixed distinctive signal would include terrorist groups in the category of lawful combatants.43 Afghanistan did not become a signatory to Additional Protocol I until October 2009.44
                                                             
39

THE LAW OF LAND WARFARE vi (DEPT. OF THE ARMY FIELD MANUAL, 27th ed.) (July 1956), available at http://www.afsc.army.mil/gc/files/fm27-10.pdf.
40 41 42

Geneva Convention III, supra note 35, at art. 4(1). Id. at art. 4(2).

See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3, [hereinafter Additional Protocol I], available at http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument.
43

THOMAS M. MCDONNELL, THE UNITED STATES, INTERNATIONAL LAW, AND THE STRUGGLE AGAINST TERRORISM 112 (2010).
44

Additional Protocol I, supra note 42. 31

 

At the time of the invasion of Afghanistan, the Taliban controlled the Afghan national government. Although only a few countries recognized the Taliban as a legitimate (de jure) government, as a de facto government the Taliban was in control of the Afghan state.45 Therefore, U.S. forces fighting the Taliban were engaged in an international armed conflict because they were fighting the military forces of the existing government, a state party to the Conventions. 46 At the time of the Afghanistan invasion, al Qaeda was allied with the Taliban government of Afghanistan. Under additional Protocol I, members of al Qaeda would be lawful combatants and U.S. military action against al Qaeda would be an international armed conflict because of the militia or volunteer corps relationship between the Taliban and al Qaeda. However, the U.S. maintains that while the armed conflict against the Taliban government of Afghanistan was an international armed conflict, its fight against al Qaeda at that time constituted a separate armed conflict from that waged against the Taliban government.47 The U.S. Supreme Court did not reach the issue of whether the U.S. was involved in one or two armed conflicts (one international, one non-international), when it ruled in Hamdan v. Rumsfeld that Common Article 3 applied, “even if the relevant conflict is not one between signatories” to the Geneva

                                                             
45 46

MCDONNELL, supra note 43, at 268.

Green points out that there was no recognition on the part of the Bush Administration that it was involved in an international armed conflict when it invaded Afghanistan in 2001; rather, the military action was premised on pursuit of the “war on terrorism.” GREEN, supra note 3, at 344. The U.S. acknowledged in 2002 that its war against the Taliban government of Afghanistan was an international armed conflict. Hamdan v. Rumsfeld, 548 U.S. 557, 629, n. 60 (2006).
47

Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005), rev’d on other grounds, Hamdan v. Rumsfeld, 548 U.S. 557 (2006). 32

 

Conventions.48 Nonetheless, the Court signaled it considered the conflict against al Qaeda, before the Taliban was driven from power, to be a non-international armed conflict. “Common Article 3 . . . provides that in a ‘conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply’ . . . certain provisions protecting ‘persons.’”49 When Harmid Karzai was selected as Chairman of the Transitional Administration50 of the government of Afghanistan, the status of U.S. military forces in Afghanistan changed from an invader to an armed force in Afghanistan at the invitation of the Afghan government. With the change in the government in Afghanistan, the status of the Taliban changed to that of a nonstate actor. Under the Third Geneva Convention, the Taliban became an “armed group” and the armed conflict in Afghanistan became solely a non-international armed conflict. The U.S. and Iraq are both state parties to the Geneva Conventions.51 Armed conflict between state parties to the Geneva Conventions are denoted international armed conflicts, which bind both warring parties to compliance with the terms of the Conventions.52 When
                                                             
48 49 50

Hamdan, 548 U.S. at 629. Id.

Amy Waldman, A Nation Challenged: Interim Authority; A Government Meets With No Budget, and Very Little Else, N.Y. TIMES, Dec. 23, 2001, http://www.nytimes.com/2001/12/23/ world/nation-challenged-interim-authority-government-meets-with-no-budget-verylittle.html?scp=5&sq=Hamid+Karzai+Chairman+of+the+Transitional+Administration&st=nyt.
51

Iraq was part of the Ottoman Empire until the end of World War I. It was under a British Mandate from 1918 until 1932. Iraq. ENCYCLOPÆDIA BRITANNICA ONLINE (2010), available at http://www.britannica.com/EBchecked/topic/293631/Iraq?cameFromBol=true. Iraq ratified the Geneva Conventions in 1956. Geneva Conventions, State Parties, available at http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=375&ps=P.
52

Geneva Convention III, supra note 35, at art. 2. 33

 

Saddam Hussein’s army was defeated, the U.S. stayed on as an occupying force supporting a Coalition Provisional Authority.53 The Third Geneva Convention still applies in cases of “partial or total occupation of the territory” of a state party.54 As in Afghanistan, after the establishment of a new Iraqi government, the fighting shifted to the combined U.S. military and Iraqi security forces against non-state actors, “armed groups,” and the conflict became a non-international armed conflict under the Third Geneva Convention. CATEGORIZATION OF PERSONS INVOLVED IN AN ARMED CONFLICT One of the challenges posed by the wars in Iraq and Afghanistan stemmed from the attempt by the Bush Administration to place the war against al Qaeda, the Taliban, and insurgents in Iraq outside the constraints of the Geneva Conventions and customary international humanitarian law. The Bush Administration’s claim that persons detained by the U.S. and its allies were not entitled to the protection of Common Article III formed the basis for its contention that the wars in Iraq and Afghanistan were not armed conflicts to which the Geneva Conventions applied.55 In effect, the U.S. claimed that the “global war on terror” was not a war that invoked the protections of international humanitarian law. However, in holding that a military commission convened to try Salim Ahmed Hamdan violated both the U.S. Uniform Code of Military Justice and the Geneva Conventions, the U.S. Supreme Court analyzed the

                                                             
53

Roger Cohen, The World: Traps Ahead; Iraq and Its Patron, Growing Apart, N.Y. TIMES, Dec. 21, 2003, at 4:1, http://www.nytimes.com/2003/12/21/weekinreview/the-world-traps-aheadiraq-and-its-patron-growing-apart.html?pagewanted=all&src=pm.
54 55

Geneva Convention III, supra note 35, at art. 2(2). GREEN, supra note 3, at 53. 34

 

conflict in Afghanistan as a non-international armed conflict,56 bringing U.S. law into line with the position of the International Committee of the Red Cross that the conflict in Afghanistan is an armed conflict to which international humanitarian law applies.57 There are three categories of persons under the laws of armed conflict, and every person fits into one of the three categories: Lawful combatants, noncombatants, and unlawful combatants. Each of the three categories of persons has different legal rights.58 All categories of persons involved in an armed conflict have the right to humane treatment under Common Article 3.59 If a captured person’s status is undetermined, the person has a right to be treated as a prisoner of war until legal status can be determined.60 Combatants, or lawful combatants, are lawfully entitled to engage in hostilities.61 Lawful combatants must be in the military force of a national government, militia, or organized resistance movement.62 Lawful combatants must be under organized command, wear a

distinctive emblem, “carry arms openly, and conduct their operations in accordance with the
                                                             
56 57

Hamdan v. Rumsfeld, 548 U.S. 557, 629 (2006).

Afghanistan: ICRC calls on all parties to conflict to respect international humanitarian law, INT’L COMM. OF THE RED CROSS, NEWS RELEASE 01/47, Oct. 24, 2001, http://www.icrc.org/eng/resources/documents/misc/57jrdn.htm.
58 59

DIETER FLECK, THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 65 (1995).

The Geneva Conventions of 1949 and Their Additional Protocols, INT’L COMM. OF THE RED CROSS, Oct. 29, 2010, http://www.icrc.org/eng/war-and-law/treaties-customary-law/genevaconventions/overview-geneva-conventions.htm.
60 61

Geneva Convention III, supra note 35, at art. 5(2).

Hague Convention (IV): Regulations Respecting the Laws and Customs of War on Land, art. 1, Oct. 18, 1907.
62

Id. 35

 

laws and customs of war.”63 Lawful combatants cannot be prosecuted for lawful warlike acts committed while engaged in hostilities (combat immunity).64 They can be prosecuted for grave breaches of the laws of armed conflict (war crimes) either by their own country or by any country or an international court.65 There is no statute of limitations on war crimes.66 Lawful combatants have a right to prisoner of war status when captured.67 Noncombatants are persons who do not take part in hostilities, i.e. civilians.68 Included in this category are medical personnel and chaplains accompanying the force, so long as they do not take up arms themselves, and persons who are hors de combat (out of the combat) because they have surrendered, are sick, or have been wounded, shipwrecked, or captured.69 Noncombatants have the right not to be the objects of direct attack.70 Noncombatants can lose their protected

                                                             
63

Id. Additional Protocol I (1977) to the Geneva Conventions drops the requirement that lawful combatants wear a distinctive emblem. The U.S., which has not ratified Additional Protocol I, has not acceded to this change, arguing that it is not in conformance with the customary laws of war.
64 65

THE LAW OF LAND WARFARE, supra note 39, at cl. 3(a).

See How "Grave Breaches" are Defined in the Geneva Conventions and Additional Protocols, INT’L COMM. OF THE RED CROSS: RES. CTR. (June 4, 2004), http://www.icrc.org/web/eng/ siteeng0.nsf/htmlall/5zmgf9?opendocument (for the complete list of grave breaches). Grave breaches that are common to all four Geneva Conventions are: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health. See Id.
66 67 68 69 70

FRAN

OISE BOUCHET-SAULNIER,

THE PRACTICAL GUIDE TO HUMANITARIAN LAW 285 (2007).

Geneva Convention III, supra note 35, at art. 5. Id. at art. 3. Id. at art. 4. Id. 36

 

status as civilians under the Fourth Geneva Convention if they engage in hostilities.71 Unlawful combatants are persons who engage in hostilities without being legally privileged to do so.72 Unlawful combatants are also referred to as unprivileged combatants or unprivileged belligerents.73 Unlawful combatants do not have combat immunity for acts they commit while engaged in hostilities and therefore are not entitled to prisoner of war status upon capture.74 They can be tried as criminals under the domestic law of the state that captures them for acts they commit that would be lawful if they were lawful combatants.75 “Terrorist” is not a category of person under international humanitarian law.76 “Terrorist” and “terrorism” have not been defined in ratified international humanitarian law treaties because it has proven difficult to craft definitions which are both sufficiently precise and sufficiently encompassing of the acts that are denoted as terrorist acts.77 However, measures or acts of terrorism that are perpetrated in the context of an armed conflict are prohibited under Art. 33 of the Fourth Geneva Convention.78 In the laws of armed conflict, “there is no legal
                                                             
71 72

Id.

Knut Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants,” 85 INT’L REV. RED CROSS, 45 (2003).
73

The words “unlawful combatant” or “unlawful/unprivileged belligerent” do not actually appear in the Geneva Conventions. Id. at 46.
74

The Relevance of IHL in the Context of Terrorism, INT’L COMM. OF THE RED CROSS: RES. CTR., Jan. 1, 2011, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-ihl210705?opendocument.
75 76

Id.

Hans-Peter Gasser, Acts of Terror, “Terrorism” and International Humanitarian Law, 84 INT’L REV. RED CROSS 547, 552 (2002).
77 78

Id. at 552-554. Geneva Convention Relative to the Protection of Civilian Persons in Time of War, art. 33, 37

 

significance…[to designating acts] as ‘terrorist’ because [those] acts… already constitute war crimes.”79 Terrorist acts are criminal under the domestic law under the country in which they take place.80 In 1987, the U.S. defined “terrorism” as “premeditated, politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents,” and “terrorist group” as “any group practicing, or which has significant subgroups which practice, international terrorism.”81 “Enemy combatant” and “unlawful enemy combatant” are not categories of persons under international humanitarian law.82 The term “enemy combatant” in international

humanitarian law means lawful or unlawful combatants of one country, with who another country is at war.83 After 9/11, the Bush administration used the term “enemy combatant” to describe members of al Qaeda and the Taliban, as well as to detain persons without charge on the

                                                                                                                                                                                                    

Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, available at http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument.
79

International Humanitarian Law and Terrorism: Questions and Answers, INT’L COMM. OF THE RED CROSS: RES. CTR., Jan. 1, 2011, http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm.
80

International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, INT’L COMM. OF THE RED CROSS: REPORT 12, OCT. 2011, http://www.icrc.org/eng/resources/ documents/report/31-international-conference-ihl-challenges-report-2011-10-31.htm.
81

22 U.S.C. § 2656 (f) (2006). Different Acts of Congress and different branches of the U.S. government use different definitions of terrorism. For links to statutory definitions in U.S. federal and state law, see U.S. ANTI-TERRORISM LAWS, http://jurist.law.pitt.edu/terrorism/terrorism3.htm.
82 83

THE LAW OF LAND WARFARE, supra note 39, at cl. 60. The Relevance of IHL in the Context of Terrorism, supra note 74. 38

 

authority of the President’s powers as Commander in Chief.84 In 2006, Congress defined “unlawful enemy combatant” to mean: [A] person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).85 The definition was made retroactive to include, “a person who, before, on, or after the date of the enactment of [the Act] has been determined to be an unlawful enemy combatant by a . . . tribunal established under the authority of the President.”86 This definition was repealed in the Military Commissions Act of 2009, which replaced the term “unlawful enemy combatant” with “unprivileged enemy belligerent,” and defined it as: [A]n individual (other than a privileged belligerent) who— (A) has engaged in hostilities against the United States or its coalition partners; (B) has purposefully and materially supported hostilities against the United States or its coalition partners; or (C) was a part of al Qaeda at the time of the alleged offense under this chapter.87 In contrast, a “privileged belligerent” was defined in the same legislation to mean, “an individual belonging to one of the eight categories enumerated in Article IV of the Geneva Convention Relative to the Treatment of Prisoners of War.”88
                                                             
84

Terry Frieden, U.S. Reverses Policy, Drops 'Enemy Combatant' Term, CNN, Mar. 13, 2009, http://articles.cnn.com/2009-03-13/politics/enemy.combatant_1_guantanamo-prisonersguantanamo-bay-al-qaeda-operatives?_s=PM:POLITICS.
85 86 87 88

Military Commissions Act of 2006, Pub. L. No. 109-366, § 948a(1)(A)(i), 120 Stat. 2601. Military Commissions Act § 948a(1)(A)(ii). 10 U.S.C. § 948a(7) (2009). Id. at § 948a(6). 39

 

The terms terrorists, enemy combatants, unlawful enemy combatants, and unprivileged enemy belligerents can all have meaning under the domestic law of a country. However, all persons who fit into those categories are lawful combatants, unlawful combatants, or noncombatants under international humanitarian law. A terrorist who commits a criminal act in peacetime is a common criminal.89 A terrorist who is a lawful combatant in an armed conflict has combat immunity for lawful hostile acts committed in the course of the armed conflict; but can be prosecuted as a war criminal for unlawful acts committed in the course of the armed conflict, such as for intentionally targeting civilians.90 A terrorist who is a lawful combatant in an armed conflict is entitled to prisoner of war status upon capture; although, once captured, he may be arrested, charged, and tried for crimes committed before the inception of the armed conflict.91 A terrorist who is an unlawful combatant has no combat immunity for hostile acts committed in the course of an armed conflict.92 Hostile acts committed by unlawful combatants are not war crimes.93 Instead, acts such as killing members of the U.S. armed forces and civilians are criminal acts and can be prosecuted under the domestic laws of the country in which the act was committed.94 A terrorist who is captured during the course of an armed conflict is not entitled to prisoner of war status, although he is entitled to the protection of Common Article
                                                             
89 90 91 92 93 94

Gasser, supra note 76, at 552. Id. at 568. Id. at 556. Fleck, supra note 58, at 68. Dörmann, supra note 72, at 70. Id. at 71. 40

 

3, which includes the right to humane treatment.95 Once captured he may be arrested, charged, and tried for crimes committed before and during the armed conflict.96 A terrorist who commits a criminal act before the onset of an armed conflict, but who does not take up arms during the course of an armed conflict is a noncombatant for the purposes of the laws of armed conflict.97 Such a person is a civilian in regard to the armed conflict.98 If captured during the course of an armed conflict, he can be tried for criminal acts committed in the country in which he was captured under the domestic law of that country, or extradited by agreement between countries to be tried in the country in which the criminal act was committed.99 “Enemy combatant” and “unlawful enemy combatant” were designations under U.S. domestic law, which were meant to place such combatants outside the framework of international humanitarian law.100 These individuals are neither lawful combatants entitled to combat immunity, unlawful combatants not entitled to combat immunity, nor noncombatants— all of whom would be entitled to the protections of Common Article 3. “Unprivileged enemy belligerent” is a current legal definition under U.S. law that is more closely aligned with the designation “unlawful combatant” under international humanitarian law.
                                                             
95 96 97 98 99

Geneva Convention III, supra note 35, Common Article 3, cl. 1. Dörmann, supra note 72, at 71. Id. at 72. Id.

THE GENEVA CONVENTIONS OF 12 AUGUST 1949 : COMMENTARY IV (1952) at 39, also available at http://www.icrc.org/ihl.nsf/COM/380-600006?OpenDocument.
100

MCDONNELL, supra note 43, at 38. 41

 

However, under U.S. law, a person may be designated an “unprivileged enemy belligerent” based solely on the characteristic of having been a member of al Qaeda “at the time of the alleged offense under this chapter.”101 But because combatant status is decided at the time a person is captured under the Third Geneva Convention,102 a person may be an “unprivileged enemy belligerent” under U.S. law but still be designated a noncombatant under the laws of armed conflict if that person has not engaged in hostilities in the armed conflict. INTERNATIONAL HUMANITARIAN LAW CHALLENGES OF THE BUSH ADMINISTRATION The Bush administration caused two problems for itself with the invasion of Afghanistan in 2001. First, by soliciting from Congress a Joint Resolution authorizing the use of the U.S. Armed Forces “against those responsible” for the recent [9/11] attacks launched against the U.S. in self-defense “against those nations, organizations, or persons” who carried out the attacks103 under the War Powers Resolution,104 it elevated the criminal acts committed by al Qaeda to acts of war. This gave al Qaeda terrorists the status of combatants—lawful or unlawful—in an armed conflict governed by the laws of armed conflict. While the outcome of a trial on criminal charges for murder for 9/11 or a trial on war crimes under the Geneva Conventions for intentionally targeting civilians for 9/11 would no doubt be the same, the members of al Qaeda who fought with the Taliban after the U.S. invaded Afghanistan in 2001 gained the status of

                                                             
101 102 103

10 U.S.C. § 948a(7)(C). Geneva Convention III, supra note 35, at art. 5.

Authorization for Use of Military Force of 2001, Pub. L. No. 107-40, 115 Stat. 224 (emphasis added).
104

War Powers Resolution, 50 U.S.C. §§ 1541-1548 (2006). 42

 

lawful combatants in the eyes of the international community.105 They gained this status because the U.S. used military force against the nation of Afghanistan, of which the Taliban was the de facto government, in response to an attack lodged by persons (al Qaeda) allied with the Taliban government, thereby elevating the conflict to the status of an international armed conflict. If the U.S. had pursued the persons who carried out the 9/11 attacks under the treaties and domestic laws governing international law enforcement, the perpetrators would have no status except that of fugitives from the domestic criminal law of the U.S.. Second, by attempting to deny persons captured since 2001 both the protections of the Geneva Conventions and habeas corpus protection under the U.S. Constitution, the Bush administration opened itself up to charges that it committed war crimes under Common Article 3 against detainees who were subject to torturous, humiliating, degrading treatment and who were denied access to either a regularly constituted court, a trial by military commission, or court martial. INTERNATIONAL HUMANITARIAN LAW CHALLENGES FACED BY THE OBAMA ADMINISTRATION The Obama administration has reaffirmed the commitment of the U.S. to international law, including international humanitarian law.106 However, it still faces law of armed conflict issues in Iraq and Afghanistan in light of the withdrawal from Iraq and the hoped-for withdrawal from Afghanistan. One ongoing, but immediate, issue in Afghanistan is the continued problem with civilian
                                                             
105 106

MCDONNELL, supra note 43, at 259.

President Barack Obama, Remarks by the President at the Acceptance of the Nobel Peace Prize in Oslo, Norway, (Dec. 10, 2009), available at http://www.whitehouse.gov/the-pressoffice/remarks-president-acceptance-nobel-peace-prize. 43

 

casualties. The problem in the field is telling the civilians apart from the combatants. The U.S. is now in Afghanistan at the invitation of the Afghan government, allied against the Taliban and al Qaeda, two non-state parties.107 Under the laws of armed conflict, the conflict in Afghanistan is a non-international armed conflict. In a non-international armed conflict, the armed forces of a state party directly engaged in hostilities are lawful combatants.108 The forces of a non-state party directly engaged in hostilities are not granted lawful combatant status, they are unlawful combatants.109 These unlawful combatants are not entitled to prisoner of war status if captured, nor are they immune from prosecution under domestic law for taking up arms.110 Civilians who take no part in hostilities are noncombatants.111 Civilians who directly participate in hostilities lose their

protected status as civilians—they are unlawful combatants.112 Because al Qaeda and the Taliban are non-state parties to a non-international armed conflict113, they cannot gain the status of lawful combatants solely through compliance with requirements of the Third Geneva Convention, i.e., being under military discipline in a chain of command, bearing a fixed distinctive emblem, carrying arms openly, and following the law of
                                                             
107

Ray Rivera, Biden Assures Karzai of Aid From U.S. Beyond 2014, N.Y. TIMES, Jan. 11, 2011, http://www.nytimes.com/2011/01/12/world/asia/12afghan.html.
108

The Relevance of IHL in the Context of Terrorism, International Committee of the Red Cross, July 21, 2005, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/terrorism-ihl210705?opendocument.
109 110 111 112 113

Id. Id. BOUCHET-SAULNIER, supra note 66, at 36. Dörmann, supra note 72, at 46. Hague Convention (1907), supra note 38, at art. 1. 44

 

war.114 The Taliban and al Qaeda can only gain status as lawful combatants by becoming the militia, volunteer corps, or organized resistance movement of a state party to the conflict,115 for example, by becoming the acknowledged allies of a country like Afghanistan or Pakistan.116 While under the laws of armed conflict all parties to the conflict are bound, if not specifically to the Geneva Conventions, then generally to the laws and customs of war, there is no incentive for stateless militant groups like the Taliban or al Qaeda to comply with the laws of armed conflict in an asymmetrical war with the U.S. military. Wearing distinctive emblems makes them targets, and protecting civilians rather than exploiting them cuts off their chain of supply and source of intelligence. For U.S. troops, it means that only good intelligence and discrimination in targeting will minimize civilian casualties, and that the NATO forces in Afghanistan will face accusations of targeting or not protecting civilians for as long as military forces remain in the field. Another challenge for the Obama administration is the disposition of persons captured during combat operations since he took office. The Bush administration’s attempt to place detainees outside both the protection of Common Article 3 and the habeas corpus protection of those accused of a criminal offense under the U.S. Constitution117 delayed decisions to try

                                                             
114 115 116

Geneva Convention III, supra note 35, at art. 4. Id.

In a snit over pressure to reform his government, Harmid Karzai reportedly threatened to join the Taliban, “apparently suggesting that the militant movement would then be redefined as one of resistance against a foreign occupation rather than a rebellion against an elected government.” Karzai Threatened to Join Taliban, Sources Say, CBS NEWS, May 9, 2010, http://www.cbsnews.com/stories/2010/04/05/world/main6365107.shtml.
117

Boumediene v. Bush, 553 U.S. 723, 735 (2008). 45

 

captives in Article III courts, by military commissions that pass constitutional muster,118 or by courts-martial.119 Under the Third Geneva Convention, where the status of a captive is in doubt, he is to be treated as a prisoner of war until a competent tribunal determines his status.120 A trial on charges lodged after categorization of the captive must be before a “regularly constituted court.”121 The Bush administration first tried to hold detainees indefinitely without charge or trial, and then used a military commission established under the Military Commissions Act of 2006 to try detainees until the U.S. Supreme Court held in Hamdan v. Rumsfeld that a commission established under the Act lacked the power to proceed because its structure and procedures violated the Geneva Conventions.122 Part of the reluctance to convene a court-martial under the Uniform Code of Military Justice may be due to a fear that trying unlawful combatants by courts-martial would be perceived as elevating their legal statuses to that of lawful combatants. However, under the Third Geneva Convention, determination of a captive’s status is made at the time of capture;123 it is not based on trial venue for any charges subsequent to capture. Common Article 3 does not
                                                             
118

A previous attempt, the Military Commissions Act of 2006, § 7, was an unconstitutional suspension of the writ of habeas corpus. Boumediene, 553 U.S. at 792.
119

Jordan J. Paust, Court-martial: A Third Option for Trying Al Qaeda and Taliban Detainees, JURIST, Mar. 12, 2010, http://jurist.law.pitt.edu/forumy/2010/03/court-martial-third-option-fortrying.php.
120 121 122 123

Geneva Convention III, supra note 35, at art. 5. Id. at art. 3. 548 U.S. 557, 567 (2006). Geneva Convention III, supra note 35, at art. 5. 46

 

impose any conditions on trial venue except that it be “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”124 Lawful combatants, such as members of the Taliban who were captured before the Taliban was driven from power in Afghanistan and should therefore have prisoner of war status, can be tried for violations of the laws of armed conflict (war crimes) that they may have committed before they were captured. Members of al Qaeda, whether they are determined to be lawful combatants who were allied with the Taliban government fighting against U.S. forces at the time they were captured or whether they are unlawful combatants who were captured after they were allied with the Taliban insurgents against the Karzai government, can be tried for violations of the laws of armed conflict committed before the Taliban was driven from power. These members of al Qaeda can be prosecuted for violations of the customary laws of war, including war crimes, for taking up arms as unprivileged combatants, and for criminal acts they may have committed in connection with 9/11 or other terrorist incidents. While the U.S.

continues to struggle with whether “a regularly constituted court” means a court that was in existence before the start of the armed conflict or whether it means a court that is created according to the U.S. domestic law, any of the three U.S. venues chosen would be appropriate for both lawful combatants and unlawful combatants without changing their legal status under international law. A third challenge for the U.S. is the surrender of detainees into the custody of the Afghan and Iraqi governments. President Obama ordered the prison at Guantanamo Bay, Cuba closed by January 2010;125 however, it remains open while the President’s administration works toward
                                                             
124 125

Id. at art. 3(1)(d). Obama Orders Guantanamo Closure, BBC NEWS, Jan. 22, 2009, 47

 

disposition of those detainees who have not been released since he took office.126 In Iraq, where detainees have been turned over to the Iraqi government,127 there were reports of torture of Sunni detainees at a secret prison in Baghdad.128 In Afghanistan, the U.S. military opened a new detention center129 to replace the prison at Bagram Air Base, where detainees were to be handed over to the Afghan government.130 Yet, the situations in Iraq and Afghanistan are not parallel because Iraq lapsed into a civil war between the Sunnis and the Shiites.131 The weakness of the Afghan government in controlling factionalism may result in detentions based on personal grudges and paid informants, which has been charged by Afghans about detentions since the 2001 invasion.132 When an armed conflict is terminated, lawful combatants who are prisoners of war are repatriated to their home country. Unlawful combatants may be held “until they no longer pose a
                                                                                                                                                                                                    

http://news.bbc.co.uk/2/hi/7845585.stm.
126

Anne E. Kornblut, Obama Admits Guantanamo Won’t Close by January Deadline, WASH. POST, Nov. 18, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/11/18/ AR2009111800571.html.
127

Lindsay Wise, Houston Guard Members Watch Over Detainees in Iraq, HOUS. CHRON., Jan. 10, 2010, http://www.chron.com/news/houston-texas/article/Houston-Guard-members-watchover-detainees-in-Iraq-1715670.php.
128

Sam Dagher, Report Details Torture at Secret Baghdad Prison, N.Y. TIMES, Apr. 27, 2010, http://www.nytimes.com/2010/04/28/world/middleeast/28baghdad.html?_r=1.
129

Rod Nordland, U.S. and Afghanistan Agree on Prisoner Transfer as Part of Long-Term Agreement, N.Y. TIMES, Mar. 9, 2012, http://www.nytimes.com/2012/03/10/world/asia/us-andafghanistan-agree-on-detainee-transfer.html.
130

Alissa J. Rubin, U.S. Frees Detainees, but Afghans’ Anger Persists, N.Y. TIMES, Mar. 19, 2010, http://www.nytimes.com/2010/03/20/world/asia/20kabul.html.
131 132

James D. Fearon, Iraq’s Civil War, 86 FOREIGN AFF., Mar.-Apr. 2007, at 2. Rubin, supra note 130. 48

 

serious security threat,” and they may be prosecuted for unlawfully taking up arms, war crimes, and other crimes.
133

They can be tried as criminals under the domestic law of the state that

captures them or under the domestic law of the state in which they committed the acts that led to their capture, or by any state under universal jurisdiction for war crimes.134 Unlawful

combatants are entitled under Common Article 3 to be protected against the passing of sentences and the carrying out of sentences without judicial due process.135 Common Article 3 also requires that all persons, no matter what their combatant status, be treated humanely.136 The U.N. Convention Against Torture, ratified by the U.S. and Afghanistan, but not Iraq, forbids a state to transfer a person to the custody of another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”137 The Bush Administration was accused of violating Common Article 3 and the Convention Against Torture, not only for the harsh interrogation techniques employed at the Guantanamo Bay Prison, but also for transferring detainees to overseas prisons where they were tortured,138 a policy allegedly justified by the need for information to fight terrorism.139 The
                                                             
133 134 135 136 137

The Relevance of IHL in the Context of Terrorism, supra note 74. GREEN, supra note 3, at 306-07. Geneva Convention III, supra note 35, at art. 3. Id.

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (Dec. 10, 1984); Status of Treaties, UN TREATY COLLECTION, http://treaties.un.org/Pages/View Details.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en (last visited Mar. 30, 2012).
138

Jane Mayer, Outsourcing Torture: The Secret History of America’s “Extraordinary Rendition” Program, NEW YORKER, Feb. 14, 2005, http://www.newyorker.com/archive/2005/02/14/050214fa_fact6?currentPage=all. 49

 

Obama administration, while fulfilling its international humanitarian law obligations in one respect by disavowing the use of torture by the U.S.,140 may still be in violation of the Geneva Conventions and the U.N. Convention Against Torture if it transfers detainees to the custody of Iraq or Afghanistan where it has substantial grounds to believe they will be tortured. However, if the Obama administration has to leave troops in Afghanistan to monitor the compliance of those U.S. allies with international humanitarian law because of international pressure to follow through on the armed conflicts in which it has been engaged, it will compromise the commitment the administration has made to completely withdraw U.S. forces from both countries. WOULD A CHANGE IN STATUS FROM “UNLAWFUL COMBATANTS” TO “LAWFUL COMBATANTS” YIELD A DIFFERENT RESULT? Additional Protocol I (1977) confers privileged belligerent status on non-state parties to a conflict if they meet the criteria of being affiliated with a party to the conflict, even if the authority of the adverse party is not recognized,141 and even if they do not bear a distinctive insignia viewable from a distance so as not to be distinguished from civilian noncombatants.142 Accession to this provision binds the parties to the Convention to treat captured combatants as

                                                                                                                                                                                                    
139

David Wippman, Introduction: Do New Wars Call for New Laws?, in NEW WARS, NEW LAWS? APPLYING THE LAWS OF WAR IN 21ST CENTURY CONFLICTS 1, 22-23 (David Wippman & Matthew Evangelista eds. 2005).
140

Obama Names Intel Picks, Vows No Torture, MSNBC, Jan. 9, 2009, http://www.msnbc.msn.com/id/28574408/.
141 142

Additional Protocol I, supra note 42, at arts. 43-44. MCDONNELL, supra note 43, at 112. 50

 

prisoners of war and to repatriate them at the end of the armed conflict unless war crimes charges are warranted.143 Since combatant status is not conferred until capture, the legal status of belligerents involved in the armed conflict does not really matter until a belligerent is taken prisoner. At that point, lawful combatants are granted combat immunity for the lawful acts they committed in the course of the armed conflict.144 They can be charged only with violations of the laws of armed conflict itself or with violations of international human rights law.145 For example, lawful combatants can be charged for grave breaches of the Geneva Conventions, such as targeting civilians, taking hostages, or using civilians as human shields. Unlawful combatants are not granted combat immunity; in addition to charges of grave breaches of the laws of armed conflict, they can be tried for the act of taking up arms itself.146 Still, if a combatant is to be charged with war crimes, such as targeting civilians, taking hostages, or using civilians as human shields, the charges lodged will be the same whether the combatant’s status is lawful or unlawful. Combatant status matters to civilians because they are entitled to protection from targeted attack.147 It does not matter to lawful or unlawful combatants because they are lawful targets in either case. Combatants who masquerade as civilians are still lawful targets. Taking up arms against the opposing military force is what makes a combatant a combatant.148 As a result, there
                                                             
143 144 145 146 147 148

Additional Protocol I, supra note 42, at art. 45(2). MCDONNELL, supra note 43, at 110. Id. Id. at 112. Gasser, supra note 76, at 554. a Fleck, supra note 58, at 68. 51

 

is no advantage to a combatant to gain lawful combatant status while he is at liberty, or any incentive to conform his acts to the requirements of international humanitarian law. If he is captured, lawful combatant status will not protect him from charges for violations of the laws of war, compared to which the charges for taking up arms are de minimus. Since he will not be released until the end of the armed conflict in either case, the only penalty he will face for taking up arms is the possibility of longer confinement than that faced by lawful combatants who are prisoners only so long as they are prisoners of war. CONCLUSION While the U.S. has reasonable concerns about the ramifications of conferring combatant status on persons who do not already meet the criteria of Geneva Convention III, Article 4, that is, in effect, what the U.S. did when it entered into a non-international armed conflict with al Qaeda in Afghanistan. By conferring an unlawful combatant status on al Qaeda, as the Court found that it did in Hamdan v. Rumsfeld when it instituted a military action against a terrorist organization, the U.S. elevated common criminals to a legal status under the laws of war to which they would otherwise not be entitled. When a political decision is taken to invoke the laws of armed conflict by deploying military forces to track down persons who are criminals under U.S. domestic laws, one of the unintended consequences is that the laws of armed conflict impose legal duties and constraints on the pursuers. The difficulty in sorting out the provisions of, and distinctions between, international human rights law, the laws of armed conflict, and international and domestic criminal law is exacerbated when a national military engages in an armed conflict with a non-state party outside the nation’s borders with the purpose of hunting down and destroying criminals. To members of

52

 

the public, if it looks like a war, sounds like a war, and feels like a war, it must be a war. If a nation is “at war,” then the persons doing the fighting must be “warriors.” The difference between an international armed conflict and a non-international armed conflict is not made clearer when the state party is bound to fight in compliance with the Geneva Conventions and Hague Rules, but the non-state party has no incentive to fight under these same rules. When it is obvious that the non-state party would lose its only strategic and tactical advantage against a superior military force if it complies with the rules of war by protecting civilians and identifying itself by a distinctive insignia, then there is a temptation placed on the state party to the conflict to use the same strategies and tactics in order to “even up” the fight. This is not what the Geneva Conventions were designed to accomplish in the High Contracting Parties’ attempt to alleviate unnecessary suffering in time of war. The American experience in Afghanistan and Iraq demonstrates that the rules by which the U.S. fights its wars, the laws of armed conflict to which the U.S. is bound under the Geneva Conventions, the Hague Rules, and the customary laws of war, cannot necessarily rescue a political decision to use the U.S. military as an instrument of international law enforcement or as an instrument of regime change. But neither can the laws of armed conflict be changed to suit the needs of a military force from conflict to conflict, depending on the enemy. In that regard, the experience of the U.S. fighting against al Qaeda terrorists in Afghanistan and politicallymotivated factions in Iraq may be instructive as to further development of international humanitarian law to prevent unnecessary suffering in times of war.

53

 

Cultural and Legal Influences and Impediments to Cultivating Peace and Human Rights in Islamic States
By Kevin Hugh Govern*

ABSTRACT There are a multitude of cultural and legal influences that assist—and impediments that resist—the cultivation of peace and human rights in Islamic states. First, there is no one single “Islamic attitude” towards the legitimacy of international law and international agreements among the nations which have adopted Islam as their official state religion, those which have adopted Islamic law (Shari’a)1 as their legal system, or those that have Muslims as the majority or sizeable minority of their populations. Second, the United Nation's Universal Declaration of Human Rights (UDHR) is perceived by some in Islamic nations as failing to take into account the cultural and religious context of non-Western, Islamic nations. Finally, there is a

fundamental requirement to categorize certain apparent or perceived differences in approaches to advancing peace and human rights with respect to Islam. Certain practices and policies may be in Shari’a; others by contrast may be erroneously attributed to be in Shari’a but are in fact of tribal or ethnic origin and are culturally significant but not Islamic. Some practices and policies

                                                             

* Kevin H. Govern, J.D., LL.M., is an Associate Professor of Law at the Ave Maria School of Law and an Instructor of Legal Studies at the California University of Pennsylvania. He has also served as an Assistant Professor of Law at the United States Military Academy. Any errors or omissions are solely the responsibility of the author.
1

Shari’a is sometimes Anglicized into Shari’ah in English translations. See, e.g., Const. of Saudi Arabia, art. 8, available at http://www.servat.unibe.ch/icl/sa00000_.html (Adopted in March 1992 by Royal decree of King Fahd); see Countries, ISLAMIC WORLD NET, http://www.islamic-world.net/countries/index.htm (for a list of nations described as Muslim, Islamic, or Islamically-influenced). 54

 

are Islamic and incapable of change or variation, while other practices or policies may be theoretical or aspirational but not enforced or enforceable. This article will examine the cultural and legal influences and impediments to the cultivation of peace and human rights in Islamic states. Part one considers the current context of war and peace in Islamic states, recounting the turbulence in large part inherent within most states and regions influenced by Islam. To understand why these conditions exist, and how they might change for the better or worse, part two examines how words and deeds matter under both Islamic law and as binding obligations under International law. Consistent with that study of words and deeds, in part three there are contemporary obligations and eternal covenants that rate commentary and show how regional and international alliances and treaties under Islamic law affect peace and human rights. Part four adds an additional layer of historical perspective of past being prologue regarding tribal influences, non-legal traditions, as well as laws and treaties which may affect the advancement of peace and human rights. Finally, in part five, the so-called “Twitter Revolutions” of 2010-2011 posits how social media and electronic dissemination of knowledge have been indispensable to the (re)establishment of peace, human rights, and political legitimacy in an ever-growing number of Islamic states. It is my hope that this five-part survey will aid readers to more deeply appreciate the matters discussed on the promotion of peace and waging of war, and the means of preserving and promoting the integrity and dignity of all human beings, Muslim and non-Muslim alike.

55

 

I. THE CURRENT CONTEXT OF WAR AND PEACE IN ISLAMIC STATES The so-called “Global War on Terror(ism),” or GWOT, now restyled as “Overseas Contingency Operations,” or OCOs,2 predominantly focuses on the clash between Western democracy and the al-Qa’eda terrorist network, while only secondarily striving to create or foster conditions for peace, stability, or promotion of human rights. That is because the latter effort is far more daunting and difficult. A coalition of nations, including but not limited to the U.S., have been targeting well over a dozen Islamic terror groups and engaging in cooperative ventures with many nations that have Islamic law heritages or substantial Muslim majority or minority populations. Such coalitional efforts still operate with inherent challenges of understanding the religion of Islam and the cultural expressions and institutions that may be influenced by Islam but not controlled or even prescribed by that faith. It is important to note that not all individual acts of terrorism can be associated with fanatical political or religious ideologues, 3 nor should terrorism or even Islamic extremism be imputed to the vast majority of those in the world who peaceably practice the religion of Islam. As previously written in 2011, [C]ountries in the Middle East and North Africa were experiencing protests against political repression and economic hardship, unprecedented in scope or duration since independence from imperial domination, and resulting in the rulers in Tunisia and Egypt being ousted, and those of Bahrain, Jordan, Libya, Oman . . . Yemen and Iran [have been] challenged.4
                                                             
2

See Scott Wilson, Al Kamen, Global War on Terror is Given New Name, WASHINGTON POST, Mar. 25, 2009, http://www.washingtonpost.com/wp-dyn/content/article/2009/03/24/ AR2009032402818.html
3

See JEFFREY F. ADDICOTT, TERRORISM LAW: MATERIALS, CASES, COMMENTS 9 (4th ed., Lawyers & Judges Publ’g Co., Inc. 2007).
4

Kevin H. Govern, 21st Century Africa as an “Arc of (In)stability”: U.S. and African Economic, Security, and Development Policies Advanced Through U.S. Africa Command Initiatives, 26 CONN. J. INT’L L. 281, 286 (2011). Since the publication of that law review note, 56

 

Harkening back some fifteen years ago to a different time which nonetheless created the circumstances of past being prologue, the American political scientist Samuel Huntington warned of an upcoming international “clash of civilizations.”5 Mindful of the aphorism that past is prologue, I will next look back to look forward, order to comment on whether or not a right to peace is mutually exclusive or inclusive of where human rights are to be recognized and realized for all. II. DIVINE WORDS AND HUMAN DEEDS - ISLAMIC LAW AND BINDING OBLIGATIONS UNDER INTERNATIONAL LAW Islamic law is ordinarily understood as the corpus of scholarly law handed down from medieval times and crystallized in written form around the 13th century (or later amongst Shi’a scholars). It stems from the 7th century divine revelations of the Qur’an (also Koran in English, but meaning the word of God) and the Sunnah (the record of the Prophet’s life). Islamic law is not found in the Qur’an or Sunnah, literally, but rather through interpretation of those sources by fallible human means.6
                                                                                                                                                                                                    

the leader of Libya was killed by rebel forces, and the leader of Yemen has sought exile in Ethiopia. Ousted Yemeni Leader Saleh to Seek Exile in Ethiopia, THE INDEPENDENT, Feb. 28, 2012, http://www.independent.co.uk/news/world/middle-east/ousted-yemeni-leader-saleh-toseek-exile-in-ethiopia-7447321.html. Since the publication of that law review note, the leader of Libya was killed by rebel forces, and the leader of Yemen has sought exile in Ethiopia. See, e.g., Ousted Yemeni leader Saleh to seek exile in Ethiopia, Independent.co.uk, Feb. 28, 2012, http://www.independent.co.uk/news/world/ middle-east/ousted-yemeni-leader-saleh-to-seekexile-in-ethiopia-7447321.html.
5

See SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF WORLD ORDER 216-18 (Simon & Schuster 1996).
6

Frank Vogel, Founder of Islamic Legal Studies Program at Harvard, Presentation to U.S. Army Civil Affairs and Psychological Operations Command/Peacekeeping And Special Operations Institute (USACAPOC/PKSOI) at the 3d Rule of Law Workshop: The Islamic Legal Tradition (Mar. 2007). 57

 

International law—based upon treaties between sovereign states and customary law through legal norms of customary exchanges between states—has been founded essentially in the exercise of free will and conclusively in the elements of contract or covenant (offer, acceptance, and consideration). In Islam, humankind has the freedom to make contracts and covenants with others, and as a collective representation of Muslims, states may observe and conclude agreements in accord with the law and custom of the land and treaty obligations.7 Islamic law allows for Muslims to honor or break such obligations, consistent with this charge: “O ye who believe! Fulfil your compacts.”8 In other words, there is exhortation to be true to your contracts, covenants and commitments. For Muslims an oath may be expressed only in one specific manner, that is, in the name of Allah alone. “There shall be no compulsion in religion; for guidance and error have been clearly distinguished.”9 Note also that a number of Hadiths (traditions of sayings of the Prophet Muhammad) suggest that swearing by anything but God is not allowed, especially with regards to contract and covenant. For instance, in Bukhari: [The Prophet] said, “What do you think of men who impose shurut [stipulations] which are not in the Writ [Book] of God most high? Any stipulation not in the Writ of God is void [batil]. Were it one hundred conditions, the judgment of God is more just, and the stipulation of God more reliable.”10
                                                             
7

See, e.g.,War View: UK Muslims Must Obey UK Law, BBC, Nov. 4, 2001, http://news.bbc.co.uk/2/hi/uk_news/1634517.stm.
8

Qur'an 5:2 (New translation by Muhammad Zafrulla Khan (1997)); see also Muhammad ibn alHasan Ash-Shaybani, MUSLIM INTERNATIONAL LAW (KITAB AL-SIYAR AL-SAGHIR), http://kalamullah.com/Books/Kitab%20al-Siyar%20as-Saghir.pdf.
9

Qur’an 2:257 (New translation by Muhammad Zafrulla Khan (1997)).

10

Frank E. Vogel, ISLAMIC LAW AND FINANCE: RELIGION, RISK AND RETURN 67 (1998) (internal citations omitted). 58

 

The consequences of infidelity to one’s word, beyond the human consequences of conflict, strife, or legal action, will be such that: “[On the Day of Judgment,] every human being will be held in pledge for whatever [evil] he has wrought – save only those that have attained to righteousness.”11 Despite these consequences, Muhammad renounced some agreements with infidels and pagans, specifically one of his first “international law” obligations, when he broke the formal treaty with the pagans at Mecca; . . . Allah is free of all obligation to the idolaters, and so is his Messenger. So now, having witnessed this Sign, if you will repent and make peace, it will be better for you; but if you turn away, then know that you cannot frustrate Allah’s design.12 To this end, some might claim that Islam recognizes that oaths may be disregarded, but the Surah, sometimes quoted towards that end, must be taken in the context in which it is offered: “Allah has sanctioned the dissolution of your vows, and He is your patron.”13 Oaths are limited to the intentions of the heart; to that end: “Allah will not call you to account for such of your oaths as are vain, but will call you to account for the evil you have deliberately assented to. Allah is most forgiving, forbearing.”14 In stark contrast to Muhammad, his followers were bound to their obligations to the “idolaters:”

                                                             
11

Qur’an 74:38, in ISLAMITEXTS, http://www.islamitexts.org/?noar=&t=9&k=74%3A38 (last visited April 19, 2012).
12

Qur’an 9:3–4 (New translation by Muhammad Zafrulla Khan (1997)) (Note that this must be read in conjunction with the exhortations which then follow: “Carry out the obligations you have assumed towards them till the end of their terms.”).
13 14

Id. at 66:2 (Note that this is related to pleasure of wives – not other matters!).

Id. at 2:225 (Note that this relates to “vain oaths, made as an excuse” from doing good and working righteousness and promoting public welfare.”). 59

 

Allah is free of all obligation to the idolaters, and so is his Messenger. So now, having witnessed this Sign, if you will repent and make peace, it will be better for you; but if you turn away, then know that you cannot frustrate Allah’s design.15 Legal systems generally recognize the impossibility and impracticability of performance as a defense to contractual obligations. This also pertains in Islam to oath keeping and absolution for oath breaking. With respect to oaths among mankind, Muslims are told that: Allah will not call you to account for your meaningless oaths but will call you to account for breaking your oaths by which you bind yourselves; the expiation of such breach is the feeding of ten poor persons with such average food as you eat yourselves, or providing clothing for them, or procuring the freedom of one held in bondage. . . . Do observe your oaths. Thus does Allah expound to you His Commandments that you may be grateful.16 Pre-Islamic Arabian tribes concluded various alliances and treaties to regulate their economic, social, and public life. Among these alliances were Hilf al-Mutayyibin and Hilf al Fudul.17 The Islamic scholar Hilmi M. Zawati has noted that Islamic law imposes the requirement to respect treaties among and between nations, even above the respect of religious solidarity, quoting the Qur’an to this end: Allah enjoins equity and benevolence and graciousness as between kindred, and forbids evil designs, ill-behaviour and transgression. He admonishes you that you may take heed. Fulfil the covenant of Allah when you have made one; and break not your pledges after making them firm, having made Allah your surety; Allah knows that which you do.18

                                                             
15

Id. at 9:3–4 (Note that this must be read in conjunction with the exhortations which then follow: “Carry out the obligations you have assumed towards them till the end of their terms.”).
16 17

Id. at 5:90.

Hilmi M. Zawati, Is Jihad a Just War? War, Peace, and Human Rights Under Islamic and Public International Law, 53 STUDIES IN RELIGION & SOC’Y 55 (2001).
18

Quar’an 16:91 (New translation by Muhammad Zafrulla Khan (1997)). 60

 

Nevertheless, if they [who have believed and have not migrated] seek your help in the matter of religion it is incumbent on you to help them except against a people between whom and yourselves there is a pact. Allah sees what you do.19 It is both a sacred and human obligation, then, in which one must live the hadith that requires Muslims to: “Fulfill the trust towards the one who trusted you, and do not betray the one who betrayed you.”20 III. CONTEMPORARY OBLIGATIONS AND ETERNAL COVENANTS – HOW REGIONAL AND INTERNATIONAL ALLIANCES AND TREATIES UNDER ISLAMIC LAW AFFECT PEACE AND HUMAN RIGHTS To fully understand Islamic attitudes towards an aspirational goal of peace and human dignity, one must return to the essence of what constitutes Islam and what it means to be a Muslim. Islam dates to the 7th Century Common Era (CE) (a/k/a Anno Domini or Year of Our Lord, abbreviated A.D.) and the life of its founder, the Prophet Muhammad of Mecca, Arabia. The Prophet’s life from 570CE through632CE included the beginning of his Prophethood in 610CE, the spread of Islam with Muslim preachers reaching China by 615CE through 625CE, the emigration of Muslims to Medina by 622CE, and the death of Muhammad in 632CE. 21 In the formative era of Islam from the 6th through the 7th centuries CE, there arose a problem of succession and leadership of the umma (community of the faithful).22 Under the four

                                                             
19 20 21

Id. at 8:74. Zawati, supra note 17, at 55 n.272 (internal citations omitted).

See MARK WELTON & KEVIN GOVERN, ILLUMINATING ISLAMIC JURISPRUDENCE: THE ORIGINS AND PRACTICE OF ISLAMIC LAW WORLDWIDE 8-10 (2d ed. 2007).
22

Id. at 12. 61

 

“rightly guided” Caliphs: Abu Bakr, Umar, Uthman, ‘Ali and their successors came a rapid spread of Islam. 23 The origins of Shi’ite and Sunni Islam began as a political movement upon Muhammad’s death where the preference of his son-in-law Ali, the fourth caliph, over Abu Bakr resulted in longterm bitterness over the challenge of Umayyad caliphs.24 “The struggles between Yazid and Umayyads (Syria) versus Husayn and Shi’ites (Iraq) at Kerbala (680CE) led to persecution by Sunni majority of those to be known as Shi’a and rejection/withdrawal of the political realm,” and the ensuing parallel but separate development of Islamic jurisprudence (fiqh) amongst Sunni and Shi’a schools of thought.25 The outset of this article noted the cultural and religious divide between Western, nonIslamic nations and non-Western, Islamic nations on international obligation regarding human rights. Nevertheless, amongst other agreements, the following were expressions of commitment to peace and human rights between and among Islamic states: the Pact of the League of Arab States and the Arab Charter of Human Rights; the Charter of the Organization of the Islamic Conference; and the Shari’a-compliant Cairo Declaration of Human Rights in Islam (CDHRI) charter. At the risk of overlooking the entire range of current events impacting upon, and being impacted by, these

                                                             
23

Id. (Note that throughout this article, certain anglicized terms will appear, to include variations which may have American or Indian / British English spelling conventions applied. In this instance, the anglicized Caliph, from the Arabic khalifat rasul Allah, means representative of the Messenger of Allah.).
24

Id. at 8-10 (this struggle reached a head in the massacre of Kerbala in 680 CE of Ali’s son Husayn’s forces. Supporters of Ali and sons Hasan and Husayn were forerunners of Shi’ism. Supporters of Abu Bakr and later of the Umayyad caliphs were the forerunners of Sunnism.).
25

Id. at 8-10. 62

 

agreements, I shall discuss the most emergent matters with regards to regional stability and security involving each. The Organization of Islamic Cooperation (OIC) with its fifty-seven members is the second largest inter-governmental organization after the United Nations.26 The OIC’s origins were

decades in the making after the official abolition of the Ottoman Empire in 1924, leading to the 1972 conference for the Ministers of Foreign Affairs of Islamic countries held in Jeddah, Saudi Arabia and the OIC charter adoption based upon the bedrock principle of Islamic solidarity.27 According to the Permanent Mission of the OIC to the United Nations, the OIC members “pool their resources together, combine their efforts and speak with one voice to safeguard the interests and secure the progress and well-being of their peoples and of all Muslims in the world.”28 Of similar aspirational nature and scope to the Arab Charter of Human Rights, the Charter of the OIC has a preamble similarly inclined towards the commitment to religious values, human rights, national sovereignty, as well as international obligations, in that it states that: to respect, safeguard and defend the national sovereignty, independence and territorial integrity of all Member States; to contribute to international peace and security, understanding and dialogue among civilizations, cultures and religions and promote and encourage friendly relations and good neighbourliness, mutual respect and cooperation;

                                                             
26

NGO Law Monitor: Organization of the Islamic Conference, THE INTERNATIONAL CENTER (Mar. 23, 2012), http://www.icnl.org/research/monitor/oic.html (the organization changed its name (Arabic: ‫ﻡﻥﻅﻡﺓ ﺍﻝﻡﺅﺕﻡﺭ ﺍﻝﺇﺱﻝﺍﻡﻱ‬‎; French: Organisation de la Conférence Islamique) in June 2011 to its current name, the Organization of Islamic Cooperation).
FOR NOT-FOR-PROFIT LAW
27 28

Id.

CHARTER OF THE ORGANISATION OF THE ISLAMIC CONFERENCE (2008), http://www.oicoci.org/is11/english/Charter-en.pdf [hereinafter CHARTER]. 63

 

to promote human rights and fundamental freedoms, good governance, rule of law, democracy and accountability in Member States in accordance with their constitutional and legal systems; to promote confidence and encourage friendly relations, mutual respect and cooperation between Member States and other States; to foster noble Islamic values concerning moderation, tolerance, respect for diversity, preservation of Islamic symbols and common heritage and to defend the universality of Islamic religion; to advance the acquisition and popularization of knowledge in consonance with the lofty ideals of Islam to achieve intellectual excellence; to promote cooperation among Member States to achieve sustained socioeconomic development for effective integration in the global economy, in conformity with the principles of partnership and equality; to preserve and promote all aspects related to environment for present and future generations; to respect the right of self-determination and non-interference in the domestic affairs and to respect sovereignty, independence and territorial integrity of each Member State; to support the struggle of the Palestinian people, who are presently under foreign occupation, and to empower them to attain their inalienable rights, including the right to self-determination, and to establish their sovereign state with Al-Quds AlSharif as its capital, while safeguarding its historic and Islamic character, and the holy places therein; to safeguard and promote the rights of women and their participation in all spheres of life, in accordance with the laws and legislation of Member States; to create conducive conditions for sound upbringing of Muslim children and youth, and to inculcate in them Islamic values through education for strengthening their cultural, social, moral and ethical ideals; to assist Muslim minorities and communities outside the Member States to preserve their dignity, cultural and religious identity; to uphold the objectives and principles of the present Charter, the Charter of the United Nations and international law as well as international humanitarian law while strictly adhering to the principle of non-interference in matters which are essentially within the domestic jurisdiction of any State;

64

 

to strive to achieve good governance at the international level and the democratization of the international relations based on the principles of equality and mutual respect among States and non-interference in matters which are within their domestic jurisdiction; Have resolved to cooperate in achieving these goals and agreed to the present amended Charter. . 29 With respect to the intersection of law and religion, the OIC created the Shari’a- compliant Cairo Declaration of Human Rights in Islam (CDHRI).30 Not intended to compliment, but rather to supplant the Universal Declaration of Human Rights,31 the CDHRI states with respect to the equal dignity of all humans, in peacetime and in wartime: ARTICLE 1: (a) All human beings form one family whose members are united by their subordination to Allah and descent from Adam. All men are equal in terms of
                                                             
29

Id. The original Charter of the Organization of the Islamic Conference was concluded Sept. 25, 1969, available at http://arabian-union.org/reference/oic_charter_text.htm. The 30 original members include the: Kingdom of Afghanistan, the People's Democratic Republic of Algeria, the State of the United Arab Emirates, the State of Bahrain, the Republic of Chad, the Arab Republic of Egypt, the Republic of Guinea, the Republic of Indonesia, the Islamic Republic of Iran, the Hashemite Kingdom of Jordan, the State of Kuwait, the Republic of Lebanon, the Libyan Arab Republic, Malaysia, the Republic of Mali, the Islamic Republic of Mauritania, the Kingdom of Morocco, the Republic of Niger, the Sultanate of Oman, the Islamic Republic of Pakistan, the State of Qatar, the Kingdom of Saudi Arabia, the Republic of Senegal, the Republic of Sierra Leone, the Somali Republic, the Democratic Republic of Sudan, the Syrian Arab Republic, the Republic of Tunisia, the Republic of Turkey, and the Yemen Arab Republic. The membership has since expanded to 57 with 5 observer states, and affiliation with 1 Muslim community, 2 Islamic institutions, and affiliation with 5 international institutions at the time of this article’s writing. See, e.g., About OIC, Presentation, PERMANENT MISSION OF THE ORGANISATION OF THE ISLAMIC CONFERENCE TO THE UNITED NATIONS OFFICES IN GENEVA AND VIENNA (2009), http://www.oic-un.org/about_oic.asp.
30

World Conference on Human Rights, Geneva, Switz., April 19 – May 7, 1993, Cairo Declaration on Human Rights in Islam, U.N. Doc.A/CONF.157/PC/62/Add.18 (June 9, 1993), available at http://www1.umn.edu/humanrts/instree/cairodeclaration.html [hereinafter Cairo Declaration].
31

The Organization Of The Islamic Conference And The Universal Declaration Of Human Rights, UNITED NATIONS UPDATE, at 53, available at http://www.wcl.american.edu/hrbrief/16/1un update.pdf?rd=1Universal Declaration of Human Rights [hereinafter UNITED NATIONS UPDATE]. 65

 

basic human dignity and basic obligations and responsibilities, without any discrimination on the basis of race, colour, language, belief, sex, religion, political affiliation, social status or other considerations. The true religion is the guarantee for enhancing such dignity along the path to human integrity.32 While these lofty, and largely admirable principles have been agreed to, the United Nations’ Human Rights Council has encountered “opposition to the CDHR, and the problems it may present to universal human rights.”33 A conference on "An analysis and Discussion of Religion and Freedom of Expression at the Human Rights Council" was held at the UN Human Rights Council on September 17, 2008,34 at which criticism was leveled at the OIC’s attempt to “validate the crimes that have led to trauma and dysfunctional societies across the Muslim world.”35 The criticism went on to claim that the OIC “does not speak for Muslims.”36 The Human Rights Council noted that was the “first time the OIC’s proposal has received such an outspoken response, especially among Muslim groups,” while acknowledging that the “OIC, on the other hand, maintains that the CDHR is a valid declaration of human rights and is still supported by members of the OIC.”37 Human Rights Watch has also leveled criticism at the OIC regarding a lack of even-handedness in examination and correction of all abuses by state and non-

                                                             
32 33 34

Cairo Declaration, supra note 30. UNITED NATIONS UPDATE, supra note 31, at 54.

See, e.g., Tarek Fatah, Founder, Muslim Canadian Congress, Speech at the Int’l Humanist and Ethical Union parallel conference: An analysis and Discussion of Religion and Freedom of Expression at the Human Rights Council, Sept. 18, 2008, available at http://www.iheu.org/node/3277.
35 36 37

Id. Id.; UNITED NATIONS UPDATE, supra note 31, at 54. UNITED NATIONS UPDATE, supra note 31, at 54. 66

 

state actors, such that it has sought to shield member states from criticism, except when it comes to criticism of Israel.38 IV. TRIBES, TRADITIONS AND TREATIES – LOOKING BACKWARD TO SEE FORWARD REGARDING PEACE AND HUMAN RIGHTS Without delving deeply into the pre-nineteenth-century histories of most Muslim nations,39 what is crucial to a present-day understanding of Islamic attitudes towards international law and international agreements stems from transformations which took place during the colonial and post-colonial eras. In most emerging states, there was a rapid dismantling of the religious-based legal systems in Muslim nations. In the so-called Dar al-Islam (literally, house/abode of Islam) four sorts of states have emerged with politico-theological approaches to maintaining or establishing Islamic law: 1) Semi-secular nations with a domain for the Shari’a, but where most of the laws are derived from the West (e.g., Turkey as the most dramatic case, but also Guyana, Suriname, and others with sizeable majority or minority Muslim populations); 2) Traditionalist
                                                             
38

Peggy Hicks, How to Put U.N. Rights Council Back on Track, HUMAN RIGHTS WATCH, Nov. 3, 2006, http://www.hrw.org/en/news/2006/11/03/how-put-un-rights-council-back-track.
39

The world’s Muslim nations include the following: Afghanistan; Albania, Algeria; Azerbaijan; Bahrain; Bangladesh; Benin; Bosnia-Herzegovina; Brunei; Burkina-Faso; Cameroon; Chad; Comoros; Djibouti; Egypt; Gambia; Guinea; Guinea-Bissau; Guyana; Indonesia; Iran; Iraq; Jordan; Kazakhstan; Kuwait; Kyrgyzstan; Lebanon; Liberia; Malaysia; Maldives; Mali; Mauritania; Morocco; Mozambique; Niger; Nigeria; Oman; Pakistan; Palestine; Qatar; Saudi Arabia; Senegal; Sierra Leone; Somalia; Sudan; Suriname; Syria; Tajikistan; Tunisia; Turkey; Turkmenistan; Uganda; United Arab Emirates; Uzbekistan; Western Sahara, and; Yemen. See Islam FAQ – Islam Around the World, ABOUT.COM, http://atheism.about.com/library/FAQs/ islam/blfaq_islam_countries.htm (last visited Apr. 24, 2012); see, e.g., CIA WORLD FACTBOOK, https://www.cia.gov/library/ publications/the-world-factbook/index.html; but see, e.g,, Yogendra K. Malik, & Dhirendra K. Vajpeyi, The Rise of Hindu Militancy: India's Secular Democracy at Risk, 29 ASIAN SURVEY 308–25 (Mar. 1985), available at http://www.jstor.org/openurl?volume= 29&date=1989&spage=308&issn=00044687&issue=3 (noting that the inclusion of Palestine and Western Sahara for some may constitute some controversy as “nations,” and for that matter the omission of the world’s largest democracy, India, which has the second-largest Muslim population of any nation in the world but is a “secular democracy”). 67

 

states (e.g. Saudi Arabia, Afghanistan); 3) “Radical” Islamizing states (e.g., Iran post-Khomeini, Sudan), and; 4) “Pluralist” or “Non-Denominational” States (e.g., Lebanon, Turkey, Indonesia, Malaysia, Nigeria and many other African States).40 Whether certain nations choose to abide by international laws or agreements is more often than not a political determination with little influence on or from the development of Islamic attitudes towards this legislation. Rather, Islamic attitudes towards international law and agreements are more likely influenced by the legitimization of certain regimes and the power structures that are recognized, reinforced—or at the very least—discussed. When conflicts arise between and within secular and religious, or Muslim and non-Muslim factions, perhaps the best approach with respect to dispute resolution would be this: “sometimes you have to talk to people who really offend you to find commonality and resolve essential differences.”41 Nations with a domain for the Shari’a have governments that recognize or even protect freedom of religion for their Muslim citizens and their clerics, but this does not mean that Shari’a dominates or even necessarily controls affairs of state domestically and in the international arena. In those nations, it is ere unlikely that the Shari’a—or clerical efforts towards its implementation— will have influence on concluding or abiding by international law and international agreements. For radical Islamizing states, Islam is more than an ideology; it advocates or agitates for states to rule solely by the Shari’a, and attempts to suppress or outlaw or destroy Islamist organizations may well lead to an escalation to violence.42 Such states have political spectra
                                                             
40 41 42

Vogel, supra note 6. Id.

Randal K. James, The Islamist Challenge in the Middle East and North Africa, AIR WAR COLL. REPORT 18-19 (Apr. 1996), available at http://www.au.af.mil/au/awc/awcgate/awc/james_rk.pdf 68

 

ranging from gradualist to revolutionary adherence to rule under Shari’a; the former is characterized by an approach which may have existed for hundreds of years and the latter by one which may have appeared virtually overnight!43 In Pluralist or Non-Denominational states like Turkey or Indonesia, Ulama and the government currently coexist to greater or lesser extents such that the Ulama supports existing rulers in their current and preexisting obligations to other nations under International law, yet these rulers still exhort the states and their peoples to follow the Shari’a without expecting too much in implementation within their legal systems.44 Next considered is the notion of what constitutes “international law” or an “international agreement,” and how Muslim nations interpret the same. Western and non-Western nations, whether or not they have Muslim populations or Islamic legal influences, may have governments that struggle mightily—and potentially fail—to construct or reconstruct functioning legal systems and adhere effectively to international laws and agreements in the wake of revolution, civil war, unrest, or occupation.45 To this end, we might look to what the majority of Muslim nations (or those with substantial Muslim populations) have, at a minimum, signed, or, in many cases ratified or acceded to, with respect to the content and applicability of international law.46 Thirty-one of the world’s fifty-six Muslim nations (or those with substantial Muslim populations) have, at a minimum,
                                                             
43 44 45

Vogel, supra note 6. Id.

See, e.g., Collaborative Governance, THE WORLD BANK INST., http://www.worldbank.org/wbi/governance/.
46

For sources of international law, see, e.g., Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, available at http://untreaty.un.org/cod/icc/statute/romefra.htm. 69

 

signed, but in many cases also ratified or acceded to, the 1969 Vienna Convention on the Law of Treaties (VCLT).47 This is crucial to appreciating Islamic attitudes towards international law and international agreements, inasmuch as Islamic signatory nations have publicly and openly committed to the notion of binding international law via treaty and agreement.48 Part III,

Observance, Application and Interpretation of Treaties in the VCLT, is particularly significant with respect to observing prior commitments, covenants and obligations. That segment restates at Article 26 the Latin maxim “Pacta sunt servanda”: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” 49 The challenges of anticipating whether those we come in contact with (or against whom nations engaged to contact with force) will abide by international law and international agreements must particularly arise when dealing with local, tribal, regional or non-state actors. These

individuals, not acting in concert with or on behalf of their governments, may care little or not at all about their governments’ commitment to such international treaties and agreements, and their immediate concerns may be far more pragmatic and less esoteric.50 For nation-to-nation contacts at the strategic level and for politico-military purposes, it is important to consider a nation’s policies toward international law and international agreements (at least at the tactical and operational levels). This consideration should take into account past and present actions rather
                                                             
47

Vienna Convention on Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf. This agreement entered into force on 27 January 1980.
48 49 50

See id. Id.

See, e.g., Major Ben Connable, Presentation at The Citadel: Culture and Insurgency, Mar. 15, 2007, available at https://www.google.com/search?sourceid=chrome&ie=UTF8&q=Presentation+at+The+Citadel%3A+Culture+and+Insurgency. 70

 

than categories of particular groups and their adherence or non-adherence to international law and international agreements. 51 So, whether a nation is “failed,” “failing,” “at risk” or even “stable” by any estimation,52 how might the U.S., or any other secular or non-Muslim nation, approach systems with Islamic legal influences to foster stability and cooperation? The answer requires an understanding of the history and culture of those nations influenced by the U.S.; using what has previously been considered “legitimate” by these nations as a guide from which to work. Harvard Law School Professor Frank Vogel has cited examples in Afghanistan and Iraq for post-intervention/occupation legal systems where it is fundamental to understand what is of tribal origin and cultural significance but not Islamic, what is Islamic and incapable of change, and what is, “what’s on the books,” as theoretical or aspirational aspects, but not enforced or enforceable.53 Great benefits come where negotiators find points of agreement to advance interests for security rather than, for instance, focusing first and foremost on human rights agendas (e.g., inheritances of women under the Shari’a).54
                                                             
51

Id. See also JOINT PUBL’N (JP) 1-02, DEP’T OF DEF. DICTIONARY OF MILITARY & ASSOC. TERMS (Nov. 8, 2010, as amended through Jan. 15, 2012), available at http://www.dtic.mil/doctrine/jel/new_pubs/jp1_02.pdf.
52

See The Failed States Index 2011, FOREIGN POL’Y, http://www.foreignpolicy.com/failedstates (last visited Mar. 8, 2012). The Fund for Peace is a research and educational organization that works to prevent war and alleviate the conditions that cause war. Annual Failed States Index assessments are based upon four social indicators, two economic indicators, and six political indicators. Similarly the Ibrahim Index of African Governance measures, amongst other things, Safety and Rule of Law; Participation and Human Rights; Sustainable Economic Opportunity; and Human Development as “proxies for the quality of the processes and outcomes of governance.” See The Ibrahim Index, MOIBRAHIM FOUND., http://www.moibrahimfoundation.org/en/section/the-ibrahim-index (last visited Mar. 8, 2012).
53 54

Vogel, supra note 6. Id. With respect to inheritance, amongst other issues, see, e.g., Toni Johnson, Backgrounder: 71

 

Some time ago, Representative Thomas P. “Tip” O’Neill said, “all politics is local.”55 So too are the notions of Islamic attitudes towards international law and international agreements. To return to one of the previously surveyed legal systems and nations, that of Afghanistan, there is now a fundamental reconciliation of religion and culture in the Afghan constitutional framework between Shari’a, customary law of court-decided laws, and positive law of civil law.56 The return to a democratization of laws in post-2001 Afghanistan has been furthered by the advancement of stability and security throughout the nation, and by the recognition that all segments of society must be actively involved in supporting local and national Afghan institutions.57 Individuals with a background in non-Islamic value systems, hoping to promote the appreciation and support of international law and international agreements in any nation with a Muslim population or legal or political systems influenced or guided by Shari’a, must become a student of Muslim and local culture and Islamic law. The temptation to advance culturally-laden and uniquely nationalistic values or beliefs must be avoided, and an attitude which finds common ground supportable under both national and international law should be fostered.58
                                                                                                                                                                                                    

Islam: Governing Under Sharia, COUNCIL ON FOREIGN RELATIONS (Nov. 10, 2010), http://www.cfr.org/publication/8034/islam.html.
55

See, e.g., ALL POLITICS IS LOCAL, available at http://www.riverdeep.net/current/2000/10 /103000_politic.jhtml. It is commonly accepted that Rep. O’Neill meant that local problems and concerns shape the politics and policies implemented and advocated by Congress.
56

See, e.g., Nadjma Yassari & Mohammad Hamid Saboory, Sharia and National Law in Afghanistan, 6 Jura Gentium 1 (2010), http://www.juragentium.org/topics/islam/en/yassari.htm, originally published in Jan Michiel Otto (ed.), SHARIA INCORPORATED: A COMPARATIVE OVERVIEW OF THE LEGAL SYSTEMS OF TWELVE MUSLIM COUNTRIES IN PAST AND PRESENT 273318 (2010).
57

Amiryar A. Quadir, Presentation to USACAPOC/PK301 at the 3d Rule of Law Workshop: The Islamic Legal Tradition (Mar. 2007).
58

Id. 72

 

V. THE “TWITTER REVOLUTIONS”59 SOCIAL MEDIA AND (RE)ESTABLISHING PEACE, HUMAN RIGHTS, AND POLITICAL LEGITIMACY IN ISLAMIC STATES One of my past commentaries chronicled how, since January 2011, U.S. allies and adversaries alike in North Africa and the Middle East have experienced public unrest challenging the illegitimacy of unelected and elected leaders alike and their role in making and enforcing the laws that rule their nations.60 That commentary noted how, in the fall of 2010, the once-

preternaturally prescient Malcolm Gladwell “cast doubt on the potential contribution of social networking to social movements and social change.”61 It further noted Gladwell’s conclusion in his October 4, 2010 New Yorker article, “Small Change: Why the Revolution Will not be Tweeted," that social networking websites with weak ties and unstructured equality were the opposite of the U.S. civil rights movement’s strength to change powerful social forces through strong ties among participants and hierarchical organizations.62 Days later, the newly-prescient “Jeremy Brecher and Brendan Smith countered Gladwell with the October 8, 2011 Huffington Post piece ‘Is Social Networking Useless for Social Change?’”63 Considering Malcolm Gladwell “out of touch with true changes in political

                                                             
59

Kevin Govern, The Twitter Revolutions: Social Media in the Arab Spring, JURIST - Forum, Oct. 22, 2011, http://jurist.org/forum/2011/10/kevin-govern-twitter-revolutions.php.
60

Id.; see also Kevin Govern, Beyond Peer Pressure to Political Revolution – Tunisia’s ‘Jasmine Revolution’ and the Use of Social Networking to (Re)establish Political Legitimacy, NAPLES DAILY NEWS, Feb. 27, 2011, http://www.naplesnews.com/news/2011/feb/27/guest-commentarybeyond-peer-pressure-political-re.
61 62

Govern, supra, note 59.

Id. (citing Malcolm Gladwell, Small Change – Why The Revolution Will Not Be Tweeted, THE NEW YORKER, Oct. 4, 2010, http://www.newyorker.com/reporting/2010/10/04/101004fa_fact_gladwell).
63

Id. (citing Brendan Smith & Jeremy Brecher, Is Social Networking Useless for Social Change?, THE HUFFINGTON POST, Oct. 7, 2010, http://www.huffingtonpost.com/brendan73

 

organizing and communication,” Brecher and Smith, with some significant understatement (and slight misstatement), cited to a “once-influential study published in 1847 [that] observed that workers were beginning to form ‘combinations’" via the use of electronic (telegraph) and print (newspaper) means of communication. In a profound understatement, the authors commented that “[m]aybe the role of telegraph and newspapers a century and two-thirds ago is irrelevant to the role of social networking media today. But maybe not. The commentary goes on to note that in fact that “study” was the 1848 “Manifesto of the Communist Party” by Karl Marx and Friedrich Engels, one of the most significantly observed – and violently opposed – documents in human history!64 Marx and Engels observed that workers were beginning to form "combinations” and that this “union [was] helped on by the improved means of communication that are created by Modern Industry, and that place the workers of different localities in contact with one another. It was just this contact that was needed to centralize the numerous local struggles, all of the same character, into one national struggle between classes.”65 In writing about those connections between history and current events, I attempted to raise some provocative questions; “namely: are ‘improved means of communications’ now creating a ‘contact . . . needed to centralize the numerous local struggles . . . into one national struggle’ between governments and their people?”66 Put another way, might modern-day

                                                                                                                                                                                                    

smith/social-networking-is-malc_b_753274.html).
64

Id. (citing Karl Marx & Friedrich Engels, MANIFESTO OF THE COMMUNIST PARTY, SELECTED WORKS, VOL. ONE 98-137 (1969), available at http://www.marxists.org/archive/marx/works/1848/communist-manifesto/).
65 66

Id. Govern, supra, note 59. 74

 

Internet revolutionaries in Islamic nations, and elsewhere, be either unconsciously or consciously following those tenets set forth in the Manifesto?67 The commentary also points out the following irony: What may prove in time to be one of America’s most infamous security breaches may also be looked upon as the impetus for some recently emergent Internetbased movements for freedom of speech and civil liberties. Specifically, Wikileaks [Internet website] founder Julian Assange told reporters . . . leaked U.S. diplomatic cables in December 2010 showed former Tunisian president Ben Ali to be corrupt and would not have U.S. support if revolution came to his nation.68 As events unfolded, “[t]hat news became known to thousands of technologically savvy young Tunisians who were weary of the persistent political illegitimacy of the Ben Ali government,” and what mobilized them to act to bring the Ali government down.69 Months after those commentaries, the world has watched recent history repeating itself in Egypt, with thirty-year strongman Hosni Mubarak having stepped down, appearing supine (literally) from ill-health before an Egyptian tribunal for a variety of crimes against his people.70 The 42-year dictator of Libya, Muammar Gaddafi, was also captured and then killed after his convoy was attacked by

                                                             
67 68

Id.

The U.S. Embassy Cables: The Documents, GUARDIAN, Dec. 7, 2010, http://www.guardian.co.uk/world/us-embassy-cables-documents/217138.
69 70

Govern, supra note 59.

Edmund Blair, Egypt's Mubarak Faces Next Trial Hearing on December 28, REUTERS, Oct. 30, 2011, http://www.reuters.com/article/2011/10/30/us-egypt-mubarakidUSTRE79T0ZB20111030.

75

 

NATO planes, including aircraft from the US and France.71 Likely not the last to depart, ousted Yemeni leader Saleh fled to Ethiopia in the Winter of 2012.72 Social networking-enabled challenges to authorities were ongoing at the time of this article’s writing in other Arab states, and also “spurred on a resurgence of Persian resistance to the theocratic regime in Iran.”73 The commentary notes how “[t]his paradigm of progress” challenges what I call “antiquated agents of change, those nineteenth and twentieth century notions ways in which peoples and nations might reestablish political legitimacy around the globe.”74 “Nineteenth Century German political scientist . . . von Gneist considered the ‘free legal profession’ as an ‘Archimedean lever for accomplishing the liberal project of personal rights and the rule of law;’” that profession may still be significant, “but interpersonal communications have become an increasingly important lever to move ideas and regimes.”75 All those who dream and talk of freedom (by all means direct and indirect) and are striving to advance human rights and peace in North Africa, the Middle East, and throughout the Islamic world and beyond, should (re-)read T.E. Lawrence to find that past is prologue: All men dream: but not equally. Those who dream by night in the dusty recesses of their minds wake in the day to find that it was vanity: but the dreamers of the day are dangerous men, for they may act their dreams with open eyes, to make it possible.76
                                                             
71

Curtis Doebbler, The Rule of Law and the Extrajudicial Killing of Muammar Gaddafi, JURIST, Oct. 24, 2011, http://jurist.org/forum/2011/10/curtis-doebbler-gaddafi-killing.php.
72 73 74 75 76

Ousted Yemeni leader, supra note 4. Id. Id. Govern, supra, note 59 (citing Rudolf von Gneist, DER RECHTSTAAT 484 (1872)).

T. E. Lawrence, Suppressed Introductory Chapter, SEVEN PILLARS OF WISDOM 23 (first published 1939), available at http://www.telawrence.net/telawrencenet/works/spw/sp 76

 

CONCLUSION This article has been the briefest of analysis of historical, present-day, and future challenges to defining and assessing both the cultural and legal influences and impediments present to cultivating peace and human rights in Islamic states. These exist as a simultaneous duality, rather than as an either/or proposition. My hopes are that the readership of Impunity Watch will use this concise collection, analysis, and commentary as they rethink past policies and relations between and among peoples of the Muslim and non-Muslim world, and to plan for and promote healthy cooperation and productive competition rather than conflict. In closing this study, let me offer a quote from the present UN Secretary-General at his Oath of Office Ceremony on advancing “rule of law” in every nation and culture, Islamic or otherwise, within the potentialities and considering the limits upon the state: “Development, security and human rights must go hand in hand; and that there can be no security without development and no development without security and neither can be sustained in the longer term without being rooted in the rule of law and respect for human rights.”77

                                                                                                                                                                                                    

_00_000.htm (“In his 1926 subscribers' edition of Seven Pillars of Wisdom, Lawrence placed dates in page headings rather than the body of the text,” and omitted this Introductory Chapter purportedly at the recommendation of George Bernard Shaw. Modern reprints of Seven Pillars of Wisdom include this now-famous Chapter.).
77

Joseph Legwalia, Special Adviser to the Secretary-General on Africa, Secretary-General's Remarks at General Assembly Tribute to Secretary-General and Oath of Office Ceremony of Secretary-General Designate Ban Ki-Moon, Dec. 14 2006, http://www.un.org/apps/sg/sgstats.asp?nid=2365. 77

 

Redress for Placement on Government Kill List? Justiciability, Separation of Powers, and International Law in Al Aulaqi v. Obama By Warren Popp* How is it that judicial approval is required when the United States decides to target a U.S. citizen overseas for electronic surveillance, but that . . . judicial scrutiny is prohibited when the United States decides to target a U.S. citizen overseas for death? Can a U.S. citizen -- himself or through another -- use the U.S. judicial system to vindicate his constitutional rights, while simultaneously evading U.S. law enforcement authorities, calling for "jihad against the West," and engaging in operational planning for an organization that has already carried out numerous terrorist attacks against the United States? Can the Executive order the assassination of a U.S. citizen without first affording him any form of judicial process whatsoever, based on the mere assertion that he is a dangerous member of a terrorist organization? How can the courts . . . make real-time assessments of the nature and severity of alleged threats to national security, determine the imminence of those threats, weigh the benefits and costs of possible diplomatic and military responses, and ultimately decide whether, and under what circumstances, the use of military force against such threats is justified? When would it ever make sense for the United States to disclose in advance to the "target" of contemplated military action the precise standards under which it will take that military action? And how does the evolving [al Qaeda in the Arabian Peninsula (AQAP)] relate to core al Qaeda for purposes of assessing the legality of targeting AQAP (or its principals) under the September 18, 2001 Authorization for the Use of Military Force?1 This long list of complex legal questions, which “present fundamental questions of separation of powers involving the proper role of the courts in our constitutional structure,” was raised for adjudication in Al-Aulaqi v. Obama, a case brought before the federal district court in Washington, DC.2 In Al-Aulaqi , the plaintiff was challenging the executive branch’s alleged
                                                             

* Impunity Watch Editor-in-Chief, 2011-2012; J.D. Candidate, Syracuse University College of Law, 2012; M.A. International Relations Candidate, Maxwell School for Citizenship and Public Affairs, 2012; B.A. Political Science and Economics, University of Missouri—St. Louis, 2009. My sincerest gratitude to my wife, Megan, and to my parents, siblings, and family-in-law for their unconditional love and support through my law and graduate school career. I would also like to thank the staff of Impunity Watch for their hard work throughout the production process.
1 2

727 F. Supp. 2d 1, 8-9 (D.D.C. 2010). Id. at 8. 78

 

illegal placement of a U.S. citizen on the CIA and the Joint Special Operations Command (JSOC) “capture or kill” list3 (“kill list”) for alleged terrorist activities overseas.4 Although the issues raised in Al-Aulaqi were, and still are, of utmost importance for the protection of individual liberties and counterterrorism policy in general, the determination of these fundamental constitutional issues was cast aside for another day, as Federal District Court Judge John D. Bates dismissed the case without ruling on its merits. In his opinion, Judge Bates recognized the gravity of his decision not to allow the case to go to trial, stating, “[t]o be sure, this Court recognizes the somewhat unsettling nature of its conclusion—that there are circumstances in which the Executive's unilateral decision to kill a U.S. citizen overseas is ‘constitutionally committed to the political branches’ and judicially unreviewable. But this case squarely presents such a circumstance.”5 This article approaches the “unsettling nature of [the court’s] conclusion” as part of a broader problem of impunity, arguing that if Judge Bates’s decision, along with other applicable cases, properly articulates U.S. law and procedure as it currently stands, then current justiciability doctrine must be reformed in order to allow fundamental questions of U.S.
                                                             
3

It is unclear whether there is an actual “list” per se. See Tara Mckelvey, Inside the Killing Machine, NEWSWEEK, Feb. 13, 2011, http://www.newsweek.com/2011/02/13/inside-the-killingmachine.html.
4

Al-Aulaqi’s placement on such a list was first reported in the Washington Post in January 27, 2010 and was subsequently confirmed by other news sources, all of which cited anonymous U.S. government officials. Dana Priest, U.S. Military Teams, Intelligence Deeply Involved in Aiding Yemen on Strikes, WASHINGTON POST, Jan. 27, 2010, http://www.washingtonpost.com/wp-dyn/ content/article/2010/01/26/AR2010012604239.html; Greg Miller, Muslim Cleric Aulaqi is 1st U.S. Citizen on List of Those CIA is Allowed to Kill, WASHINGTON POST, April 7, 2010, http://www.washingtonpost.com/wp-dyn/content/article/2010/04/06/AR2010040604121.html; Dina Temple-Raston, U.S. Turns Up Heat On Internet Imam Awlaki, NATIONAL PUBLIC RADIO, July 29, 2010, http://www.npr.org/templates/story/story.php?storyId=128831726.
5

Al-Aulaqi, 727 F. Supp. 2d at 51. 79

 

constitutional law and international law to be decided by the courts, and to prevent possible violations of international law caused by the impunity itself. Of course, the Al-Aulaqi case is far from the only instance where a plaintiff raised timely and fundamental constitutional issues, but was unable to have his day in court due to issues of justiciability.6 Moreover, while beyond the scope of this article, there are also similar issues raised by the courts’ use of the state’s secrets privilege7 and heightened pleadings standards.8 The purpose of this article is not to attempt to make a determination of whether the alleged
                                                             
6

See, e.g., ACLU v. NSA, 493 F.3d 644, 652 n. 5 (6th Cir. 2007) (“this court is presented with a cascade of serious questions. Has the NSA violated the United States Constitution—the First Amendment, the Fourth Amendment, or the Separation of Powers Doctrine? Or, has the NSA violated federal statute . . .? If the NSA has violated a federal statute, is that statute constitutional when applied to the NSA in this manner?”); People's Mojahedin Org. of Iran v. U.S. Dep’t. of State, 182 F.3d 17, 23 (D.C. Cir. 1999) (quoting Designation of Foreign Terrorist Organizations, 8 U.S.C. § 1189) (political question bars appellate court from reviewing Secretary of State’s determination that “the terrorist activity of the organization threatens the security of United States nationals or the national security of the United States,” leaving the court to uphold the Secretary of State’s determination without any “judgment whatsoever regarding whether the material before the Secretary is or is not true”); Idris v. Obama, 667 F. Supp. 2d 25, 29 (D.D.C. 2009) (denied next friend standing because ‘next friend’ “never met with petitioner since his confinement, counsel cannot be certain that [the 'next friend'] represents petitioner's best interests").
7

See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (foreign national’s claim under Alien Torts Statute against company that allegedly participated in U.S. government extraordinary rendition program barred during pleading stage by the government, which intervened in case, on the grounds of state secrets privilege); See also Andrew Kingman, State Secrets are a Privilege, Not a Right: Can Foreign Victims of Extraordinary Rendition and Torture Overcome the State Secrets Privilege Using the Alien Tort Statute? 16 SUFFOLK J. TRIAL & APP. ADVOC. 118, 121 (2011) (citations omitted) (“The recent ruling by the Supreme Court of the United States denying certiorari in Arar v. Ashcroft in addition to the Ninth Circuit's decision en banc in Mohamed v. Jeppesen Dataplan, Inc. have, as of this moment, denied an entire class harmed by the U.S. government from pursuing a judicial remedy.”).
8

See, e.g., Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (torture and extraordinary rendition claims dismissed for failure to state a claim); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (use of Twombly heightened pleading standard led to dismissal for failure to state a claim); see also Edward Brunet, The Substantive Origins of “Plausible Pleadings”: An Introduction to the Symposium on Ashcroft v. Iqbal, 14 LEWIS & CLARK L. REV. 1 (2010). 80

 

kill lists violate U.S. constitutional or federal statutory law, nor even whether they are illegal under principles of international law. Instead, this article seeks to provide a thorough analysis of the Al-Aulaqi decision, provide a brief overview of the pertinent U.S. legal doctrines as they appear to currently stand, and assuming, arguendo, that that the law in Judge Bates’s opinion was void of legal error, to explain ways in which Congress and the Judiciary—should they find the political and/or moral inclination—could reform justiciability doctrine to prevent future instances of justiciability-based impunity. The legal doctrines covered will be standing, including both next friend and third party standing, and the political question doctrine. This article will also explore arguments regarding whether current justiciability doctrine itself is leading to violations of international law concerning due process rights and extrajudicial killings. However, the purpose of this article is not to support or refute this argument, but rather to show that it is at least a legitimate legal argument that is deserves consideration by U.S. courts. At the very least, U.S. courts should address this issue to avoid its determination in an arguably politically unsettling international forum, including another country that has adopted the principle of Universal Jurisdiction. I. WHY THE COURT DISMISSED THE CASE Judge Bates ultimately dismissed the case due to issues of justiciability, finding that AlAulaqi’s father did not have standing to sue in U.S. courts, and that the issues raised were political questions that could not be reviewed by the courts. The justiciability doctrines consist of both constitutional and prudential requirements, with the constitutional requirements based on the case and controversy requirement of Article III.9
                                                             
9

See U.S. CONST. art. III § 2. This distinction is discussed in Part D.1 infra. 81

 

Erwin Chemerinsky outlines four key policy considerations that the justiciability doctrine seeks to address: (1) determining “when it is appropriate for the federal courts to review a matter and when it is necessary to defer to the other branches of government”; (2) conserving judicial resources, including conserving the courts’ arguably limited political capital; (3) improving “judicial decision-making by providing the federal courts with concrete controversies best suited for judicial resolution”; and (4) promoting fairness, including preventing “the federal courts from adjudicating the rights of those who are not parties to a lawsuit.”10 In Baker v. Carr, the Supreme Court framed the case and controversy question as follows: Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing. It is, of course, a question of federal law.11 A. Next Friend Standing Al-Aulaqi’s father sued on his son’s behalf, asserting ‘next friend’ standing.12 The current test for next friend standing, promulgated in Whitmore v. Arkansas,13 consists of two requirements: (1) the “‘next friend’ must provide an adequate explanation--such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action;” and
                                                             
10 11 12

Erwin Chemerinsky, Federal Jurisdiction § 2.1, at 45-46. 369 U.S. 186, 204 (1962).

Reply Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction and in Opposition to Defendants’ Motion to Dismiss at 6-11, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (Oct. 8, 2010) (No. 10-cv-01469) [hereinafter Reply Memorandum in Support of Plaintiff’s Motion].
13

495 U.S. 149 (1990). 82

 

(2) “the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest.”14 District Court Judge Bates ultimately ruled that the father did not have ‘next friend’ standing, claiming that Al-Aulaqi had the ability to assert his own constitutional rights because the threat of imprisonment, including the possibility of indefinite detention at Guantanomo Bay Naval Base, did not preclude him from going to the U.S. embassy in Yemen to assert these rights or otherwise reach out via email or other electronic communications15 to contact a U.S. lawyer.16 Moreover, the Court found that the father could not demonstrate that he was acting in the “best interests” of his son because his son had given no indication that he would be interested in vindicating his constitutional rights in the U.S. federal court system, and that all inferences actually seemed to indicate otherwise.17 B. Third Party Standing The court claimed that Al-Aulaqi’s father lacked third party standing. In Powers v. Ohio,

                                                             
14

Caroline Nasrallah Belk, Next Friend Standing and the War on Terror, 53 Duke L.J. 1747, 1755 (citing Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990)); see also Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 16 (D.C. Cir. 2010) (quoting Whitmore, 495 U.S. at 163-164).
15

The court in Al-Aulaqi challenged the assertion that Al-Aulaqi was indeed incommunicado, highlighting evidence that showed “he has communicated with the outside world on numerous occasions.” 727 F.Supp.2d at 19.
16

See id. at 18-19 (“All U.S. citizens may avail themselves of the U.S. judicial system if they present themselves peacefully, and no U.S. citizen may simultaneously avail himself of the U.S. judicial system and evade U.S. law enforcement authorities.” (emphasis in the original)).
17

Id. at 21 (“to the extent that Anwar Al-Aulaqi has made his personal preferences known, he has indicated precisely the opposite – i.e., that he believes it is not in his best interests to prosecute this case”). 83

 

the Supreme Court promulgated a three-part test to determine third party standing:18 [1] The litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute; [2] the litigant must have a close relation to the third party; and [3] there must exist some hindrance to the third party's ability to protect his or her own interests. There is also a fourth prudential factor that was a part of pre-Power decisions, which was incorporated it into its discussion of the second prong of the test19: “Where ‘genuine conflicts’ exist between the litigant's interests and those of the absent third party, this factor ‘strongly counsels against third party standing.’”20 The first prong is a constitutional limit on third party standing, while the second and third prongs are prudential.21 The Al-Aulaqi court found that Al-Aulaqi’s father did not have third party standing: Plaintiff cannot show that a parent suffers an injury in fact if his adult child is threatened with a future extrajudicial killing.22 Moreover, even if plaintiff could make such a showing, the prudential Powers factors militate against according plaintiff third party standing to assert violations of his son's constitutional rights. As the Supreme Court has observed, where "the interests of [a] parent and [a] child are not in parallel, and indeed, are potentially in conflict," a parent may not evade the requirements of "next friend" standing by instead bringing suit under the related doctrine of third party standing.23
                                                             
18

Powers v. Ohio, 499 U.S. 400, 411 (1991) (citing Singleton v. Wulff, 428 U.S. 106, 112-16 (1976)).
19 20 21 22

Al-Aulaqi, 727 F.Supp.2d at 23. Id. (citing Amato v. Wilentz, 952 F.2d 742, 750 n. 7 (3d Cir. 1991)) (other citation omitted). See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Amato, 952 F.2d at 748-49.

For third party standing, the third party must meet the constitutional case and controversy requirements for standing, notably that the third party plaintiff himself suffered an injury in fact. Al-Aulaqi, 727 F.Supp.2d at 23; see also infra note 24 and accompanying text.
23

Al-Aulaqi, 727 F.Supp.2d at 24, (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 15 (2004)). 84

 

“To establish the ‘irreducible constitutional minimum of standing,’ a plaintiff must allege (1) an ‘injury in fact’ which is ‘(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical’; (2) ‘a causal connection between the injury and the conduct complained of’; and (3) a likelihood ‘that the injury will be redressed by a favorable decision.’”24 The Al-Aulaqi court noted that “Art. III ‘requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.'’"25 The Al-Aulaqi court rejected the claim that Al-Aulaqi’s father “will be injured by defendants' use of lethal force, since defendants' extrajudicial killing of Anwar Al-Aulaqi would permanently sever plaintiff’s relationship with his adult child.”26 The court noted that “a

plaintiff can only establish an Article III injury in fact based on emotional harm if that alleged harm stems from the infringement of some ‘legally protected,’27 or ‘judicially cognizable,’28 interest that is either ‘recognized at common law or specifically recognized as such by the Congress.’”29 The court found that the loss of the relationship between a parent and adult child did not meet any of these requirements as the common law was very clear in rejecting such an
                                                             
24 25

Id. at 14-15 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

Id. at 15 (quoting Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982)). Note that a third party must also pass the constitutional limits of causation and redressability. See CHEMERINSKY, supra note 10, § 2.3.4, at 85.
26 27 28 29

Al-Aulaqi, 727 F.Supp.2d. at 25. Id. at 25 (quoting Lujan, 504 U.S. at 560). Id. at 25 (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). Id. (quoting Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997)). 85

 

injury as sufficient grounds for standing, and Congress has passed no law altering court precedent.30 C. Political Question Doctrine The Political Question Doctrine was first promulgated in Marbury v. Madison.31 In

Marbury, Justice Marshall determined that there were a small number issues that are outside of the review of the federal courts: “By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience.”32 The court then promulgated a very narrow range of political powers, including the appointment of certain officers, the actions of those officers as an extension of the President, the actions of the department of foreign affairs, the signing or vetoing a bill, etc.33 The Marshall Court clearly limited this power if it encroached upon individual rights: “The subjects are political. They respect the nation, not individual rights . . ..”34 However, while the Supreme
                                                             
30

Id. at 26 (“Plaintiff also has no constitutionally protected interest in maintaining a relationship with his adult child”); see also id. at 27 (“Plaintiff has failed to cite a single case to support the argument that a parent enjoys a common law interest in maintaining a relationship with his adult child”); id. at 30 (quoting Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 809-10 (D.C. Cir. 1987) (“Despite the arguable hindrance to Anwar Al-Aulaqi's ability to sue on his own behalf, plaintiff lacks third party standing under Powers because his interests do not align with those of his son. Plaintiff also cannot pass the Haitian Refugee “relationship” inquiry, because none of the rights that plaintiff claims are infringed by the alleged targeted killing of his son constitute substantive protections of the father-adult son relationship, and the alleged targeted killing of plaintiff's adult son is not ‘designed to interfere with’ the father-adult son relationship.”)).
31 32 33 34

5 U.S. 137 (1803). Id. at 166. See id. Id. 86

 

Court continues to invoke Marbury in its decisions, “the political question now includes instances where individuals allege that specific constitutional provisions have been violated and that they have suffered a concrete injury . . . [It] is not limited to instances in which the president is exercising discretion and there is no claim of constitutional conduct.”35 In Al-Aulaqi, Judge Bates found that in addition to the lack of standing, the plaintiff was barred based on the political question doctrine. Judge Bates found that the plaintiff’s claims “pose precisely the type of complex policy questions that the D.C. Circuit has historically held non-justiciable.”36 Judge Bates found that if the court addressed the case on the merits, the court would have to decide: (1) the precise nature and extent of Anwar Al-Aulaqi's affiliation with AQAP; (2) whether AQAP and al Qaeda are so closely linked that the defendants' targeted killing of Anwar Al-Aulaqi in Yemen would come within the United States's current armed conflict with al Qaeda; (3) whether (assuming plaintiff's proffered legal standard applies) Anwar Al-Aulaqi's alleged terrorist activity renders him a “concrete, specific, and imminent threat to life or physical safety”; and (4) whether there are "means short of lethal force" that the United States could “reasonably” employ to address any threat that Anwar Al-Aulaqi poses to U.S. national security interests.37 In recognizing the application of the Political Question Doctrine, Judge Bates noted that it “reveals that national security, military matters and foreign relations are ‘quintessential sources of political questions.’”38

                                                             
35 36 37 38

CHEMERINSKY, supra note 10, § 2.6.1, at 148. Al-Aulaqi, 727 F.Supp.2d at 46. Id.

Id. at 45 (quoting El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010)). 87

 

II. WHY THE COURT’S INABILITY TO HEAR TO THE CASE IS A PROBLEM Assuming that Judge Bates applied the correct legal standards when he ruled that decisions on the fundamental underlying issues would have to wait until another day,39 it is difficult to imagine any case raising similar legal issues that the court could actually decide. Judge Bates made it clear that U.S. law does not recognize the relationship between adult parents and adult children as a fundamental right, and thus such parents do not have standing on their own to sue because they have no cognizable harm.40 Moreover, Judge Bates essentially found that U.S. citizens on the alleged CIA kill list would have to come out of hiding and knock on the door of the U.S. embassy in whatever country he or she was in to seek their constitutional right to counsel and to due process in the U.S. courts.41 Thus, if Judge Bates’s decision is correct, it is troubling that this type of controversy is outside the scope of judicial review. Plaintiff’s brief in opposition to the government’s motion to dismiss articulates the broader problem in the court declining to hear this case on justiciability grounds: “If this Plaintiff is not permitted to raise these claims in this context, it is difficult to conceive of any plaintiff who will be, and the courts will have been categorically excluded from any role in resolving profound and critical questions involving the constitutional rights of US citizens.”42 According to Jameel Jaffer, Deputy Legal Director of the American Civil Liberties Union (“ACLU”), “[i]f the court’s ruling is correct, the government has unreviewable authority
                                                             
39

Id. at 9 (“Because these questions of justiciability require dismissal of this case at the outset, the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must await another day or another (non-judicial) forum.”).
40 41 42

See id. at 22-23. See id. at 17. Reply Memorandum in Support of Plaintiff’s Motion, supra note 12, at 2. 88

 

to carry out the targeted killing of any American, anywhere, whom the president deems to be a threat to the nation.”43 In ACLU v. National Security Agency / Central Security Service, a similar concern about unchecked executive power in regards to warrantless wiretapping of U.S. citizens was expressed in the district court’s opinion.44 The district court made it a point to note, if the court were to deny standing based on the unsubstantiated minor distinctions drawn by Defendants, the President's actions . . ., in contravention of [the Foreign Intelligence Surveillance Act] FISA, Title III, and the First and Fourth Amendments, would be immunized from judicial scrutiny. It was never the intent of the Framers to give the President such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights.45 Judge Bates concluded that the refusal of the court to rule on the merits of the case does not foreclose the possibility that the courts will ultimately hear such a case because the defendant merely needs to seek the constitutional protections that he is entitled to. This is problematic because it ignores the very real possibility that U.S. citizens on such a kill list would never learn they were on the list until they were assassinated or faced an attempted assassination by the CIA or JSOC. Here it is important to recall that the only reason that the plaintiff learned that AlAulaqi was on such a list was that this secret/classified information was leaked by a U.S. official(s) to the media. It is foreseeable and likely that other U.S. citizens on such a list will not be fortunate enough to have access to even the knowledge that they are being targeted for assassination, and thus the alleged harm may well be the victims death.
                                                             
43

Press Release, Center for Constitutional Rights, Court Dismisses Targeted Killing Case On Procedural Grounds Without Addressing Merits (Dec. 7, 2010), available at http://ccrjustice.org/newsroom/press-releases/court-dismisses-targeted-killing-case-proceduralgrounds-without-addressing-.
44

ACLU v. Nat'l Sec. Agency / Central Sec. Serv., 438 F. Supp. 2d 754 (E.D. Mich. 2006), vacated and remanded, ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007).
45

Id. at 771. 89

 

The decision in Al-Aulaqi can be viewed as part of broader problem of denial of judicial review of executive decisions. For example, the panel of the Fourth Circuit that heard the intermediate appeal in Hamdi v. Rumsfeld46 said that if they were to dismiss the petitioner’s appeal, “we ourselves would be summarily embracing a sweeping proposition—namely that, with no meaningful judicial review, any American citizen alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say-so.”47 The Supreme Court in Hamdi said, “we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive's discretion in the realm of detentions.”48 Moreover, in Boumediene v. Bush, the Supreme Court renewed its focus on the fundamental role of the separations of power in habeas corpus cases.49 Although justiciability doctrine may not fill a role that is equivalent in stature to “the Great Writ,” it does serve as an important, and in many instances is the key, determiner of whether the judiciary fulfills its role as the final interpreter of the Constitution on some fundamental issues. In Al-Aulaqi, we have a case where there is no meaningful judicial review, not of an
                                                             
46 47 48 49

542 U.S. 507 (2004). Hamdi v. Rumsfeld, 296 F.3d 278, 283 (4th Cir. 2002). Hamdi, 542 U.S. at 536.

See Boumediene v. Bush, 553 U.S. 723, 743 (2008) (citations omitted) (“Because the Constitution's separation-of-powers structure, like the substantive guarantees of the Fifth and Fourteenth Amendments, protects persons as well as citizens, foreign nationals who have the privilege of litigating in our courts can seek to enforce separation-of-powers principles.”); see also Stephen I. Vladeck, The Unreviewable Executive: Kiyemba, Maqaleh, and the Obama Administration, 26 CONST. COMMENTARY 603, 606, 608 (2010) (“thesis is that arguments against judicial power in habeas cases are effectively arguments in favor of executive power, since they presuppose that the merits of the petitions--whether the detention of the petitioner is legally authorized--are irrelevant”). 90

 

indefinite detention of an American citizen, but of the extrajudicial killing of an American citizen at the hands of his own government. It is worth recalling the words of Justice Marshall in Marbury v. Madison: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.”50 He went on to quote Blackstone’s Commentaries on the Laws of England: “’it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded.’”51 If the judiciary is left without the ability to serve as a final arbiter of issues of key areas of constitutional law, especially given the current popular public support of counter-terrorism measures, the executive branch will too often be free to expand its powers with few checks on its power. Professor Vladeck provides a clear framing of this issue: “does the separation of powers have a meaningful contribution to make to our understanding of how the Constitution limits the power of the political branches to deny access to the courts?”52 It is my hope to make a small contribution to further his affirmative answer to this question. III. VIOLATIONS OF U.S. AND INTERNATIONAL LAW Not only is the inability of the courts to hear such fundamental constitutional questions
                                                             
50 51

Marbury v. Madison, 5 U.S. 137, 163 (1803).

Marbury, 5 U.S. at 163 (quoting 3 Sir. William Blackstone, Commentaries on the Laws of England 23 (1765)).
52

Stephen I. Vladeck, Boumediene’s Quiet Theory: Access to Courts and the Separation of Powers, 84 NOTRE DAME L. REV. 2107, 2115 (2009). 91

 

troubling, it may be in violation of international law. Moreover, it is also leading to impunity regarding possible violations of U.S. and international law. A. International Due Process Rights Violated The right to life is found in every major international human rights instrument, notably the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).53 An individual’s right to life is also considered part of customary international law, and thus is in effect regardless of state ratification of any relevant treaties.54 “The provisions on the right to life contain a prohibition, the essence of which is to forbid extrajudicial executions or arbitrary killings.”55 One characteristic of “arbitrary” is understood to be “occurring outside any judicial process or framework of law,” and can also “be understood to ‘include elements of inappropriateness, injustice and lack of predictability.’”56 B. International Law Prohibitions on Extrajudicial Killings/Targeted Killings It is relatively clear that international human rights law prohibits extrajudicial killings. Noam Lubell uses an event with facts similar to those in Al-Aulaqi to explore the status of international law surrounding necessity and proportionality in the context of human rights
                                                             
53

NOAM LUBELL, EXTRATERRITORIAL USE OF FORCE AGAINST NON-STATE ACTORS 169, Oxford Unversity Press: New York (2010); Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) (“Everyone has the right to life, liberty, and the security of person.”); International Covenant on Civil and Political Rights (ICCPR), G.A. Res. 2200A (XXI), Art. 6.1 (Dec. 16, 1966) (“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”).
54 55 56

LUBELL, supra note 53, at 170 (citations omitted). Id. (citations omitted) (citing ICCPR, Arts. 6.2, 9.1, 12.3, 13, 14.7, 18.3, 19.3, 21, 22.2).

Id. (citations omitted) (quoting Van Alphen v. Netherlands, Comm. No. 305/1988, UN Doc CCPR/C/39/D/305/1988, 15 August 1990, para. 5.8). 92

 

protections, including whether “a drastic measure of this type could ever conform to the human rights principle protecting the right to life.”57 According to reports originally published in the Washington Post, this incident involves a CIA predator drone that killed six suspected Al-Qaeda terrorists in Yemen, including one Al-Qaeda leader who was believed to be one of the planners of the October 12, 2000 terrorist attack on the U.S.S. Cole.58 The more accurate description of the debate is, thus, whether targeted killings such as the alleged kill lists in Al-Aulaqi are examples of illegal extrajudicial killings or permissible military action pursuant to the laws of war/armed conflict.59 Dycus, Banks, and Raven-Hansen

articulately frame the issue: “The analysis under international law may turn on whether the ‘war on terror’ is really a law enforcement operation, to which the law of human rights applies, or an armed conflict, to which [international] humanitarian law [“IHL”] applies.”60 analysis of the 2002 strike in Yemen, he recognizes, Under IHL[,] membership of an armed group could, in certain circumstances and
                                                             
57 58

In Lubell’s

See id. at 173.

Walter Pincus, U.S. Strike Kills Six in Al Qaeda; Missile Fired by Predator Drone; Key Figure in Yemen Among Dead, WASHINGTON POST, Nov. 5, 2002, at A01. Although not the subject of Lubell’s analysis, the case is even more similar to Al-Aulaqi because it was later revealed that one of the suspected terrorists killed in the attack was a U.S. citizen. See Dana Priest, CIA Killed U.S. Citizen In Yemen Missile Strike: Actions Legality, Effectiveness Questioned, WASHINGTON POST, Nov. 8, 2002, at A01, available at http://www.washingtonpost.com/ac2/wp-dyn?page name=article&node=&contentId=A25630-2002Nov7&notFound=true.
59

It should be noted that, given the number and proportion of civilians killed during predator drone air strikes, there is a substantial debate as to whether targeted killings, even in the context of an authorized use of force under the laws of war, violates the proportionality requirements. See, e.g., Shane Harris, Are Drone Strikes Murder? NATIONAL JOURNAL, Jan. 9 2010, at 21; see also William C. Banks & Peter Raven-Hansen, Targeted Killing and Assassination: The U.S. Legal Framework. 37 U. RICH. L. REV. 667, 671 (2003).
60

STEPHEN DYCUS, WILLIAM C. BANKS, & PETER RAVEN-HANSEN, COUNTERTERRORISM LAW 74 (2007). 93

 

depending on interpretations of combatant status and loss of civilian protection, form part of an argument for justifying a killing, but international human rights law does not make room for such a possibility.61 Lubell’s ultimate conclusion is that the killings were probably illegal under international human rights law; and, if the claim was “based on the vague notion of a general ‘war on terror’ then there are strong reasons not to accept that it was part of an armed conflict and, therefore, not subject to being legitimized by IHL.”62 However, this conclusion is less important for either its outcome or its merits, but merely serves to frame the debate and illustrate that the question of the legality of targeted killings by the U.S. is on uncertain international legal grounds. The question of whether the U.S. operations in Yemen were part of an armed conflict authorized by Congress through the AUMF was one of the key questions raised by the plaintiff in Al-Aulaqi,63 and its inability to find its way into the courthouse serves as a reminder of the implications of following current justiciability doctrines. Recently, human rights organizations and even foreign prosecutors have pursued universal jurisdiction claims against high-ranking world leaders and their agents, including targeting current and former U.S. officials.64 This development serves as an additional incentive to
                                                             
61 62 63

LUBELL, supra note 53, at 177. Id.

See Memorandum in Support of Plaintiff’s Motion for a Preliminary Injunction at 9-10, AlAulaqi v. Obama, et al, No. 1:10CV01469 (Aug. 30, 2010), available at http://www.ccrjustice.org/files/PI%20Motion.pdf [hereinafter Memorandum in Support of Plaintiff’s Motion].
64

See, e.g., Human Rights Groups Announce Bush Indictment for Convention Against Torture Signatory States, INTERNATIONAL FEDERATION FOR HUMAN RIGHTS (Feb. 7, 2011), http://www.fidh.org/Human-Rights-Groups-Announce-Bush-Indictment-for (The Center for Constitutional Rights, the European Center for Constitutional and Human Rights, and the International Federation for Human Rights “were joined by more than 60 human rights organizations and prominent individuals who signed on to support the call for George W. Bush’s 94

 

reconsider U.S. justiciability doctrine. This incentive is based on a desire to have U.S. courts, rather than foreign courts or international tribunals, which are presumably less deferential to the actions of U.S. officials and are less familiar with U.S. law and our system of government in general, serve as the ultimate authority on these issues. C. U.S. Law Prohibitions on Extrajudicial Killings/Assassinations The scope of this article does not allow for a comprehensive overview of potential U.S. statutory and constitutional law violations, and such an analysis has the potential to detract from the broader problem that, regardless of the viability of the allegations of illegal activity, the current rules for standings in federal courts do not appear to allow for many of these allegations to be heard. However, given the importance of the allegations, a cursory—and far from exclusive—overview of some of the principle arguments is warranted. Although not raised directly in Al-Aulaqi, one common claim voiced by commentators is based on a violation of the executive order, first issued by President Ford in 1976, banning “political assassinations” by employees of the U.S. government.65 Presidents Carter and Reagan subsequently maintained it with slight modifications, with Reagan’s version, Executive Order 12,333, still serving as the binding order.66 Although not surprising given the focus of this article, the arguments regarding a possible violation of Executive Order 12,333 have yet to be
                                                                                                                                                                                                    

prosecution.”); Mark Landler, German Court Seeks Arrest of 13 C.I.A. Agents, N.Y. TIMES, Jan. 31, 2007, http://www.nytimes.com/2007/01/31/world/europe/31cnd-germany.html (indictment to prosecute based on alleged CIA kidnapping and extraordinary rendition of German of Lebanese descent to Afghanistan).
65

Exec. Order No. 11,905, 41 Fed. Reg. 7703 (Feb. 19, 1976), available at http://www.ford.utexas.edu/library/speeches/760110e.htm#assassination.
66

See Exec. Order 12,036, 43 Fed. Reg. 3674 (Jan. 26, 1978) (Carter); Exec. Order 12,333, 46 Fed. Reg. 59, 941 (Dec. 4, 1981) (Reagan). 95

 

considered in the courts, with the outcome far from clear.67 In fact, the Executive Orders lack a definition of “political assassinations,” which has resulted in a lack of guidance for U.S. administrative, military, and intelligence personnel.68 Complicating matters further are secret presidential findings by both the Clinton and second Bush Administrations that authorized lethal force in “self-defense.” President Bush’s finding purportedly authorized the CIA to target the leaders of Al-Qaeda regardless of their location,69 and hence, the plaintiff in Al-Aulaqi wants to obtain the standards used to determine whether a U.S. citizen is placed on the kill list. According to the New York Times, the government claims that the ban on assassinations does not apply to the killing of enemies in war, stating, [t]he Bush administration took the position that killing members of Al Qaeda, a terrorist group that has attacked the United States and stated that its goal is to attack again, is no different than shooting enemy soldiers on the battlefield. The Obama administration, which has continued to fire missiles from Predator drones on suspected Qaeda members in Pakistan, has taken the same view.70 Thus, one of the most important aspects of the merits of the claims in Al-Aulaqi returns to the reliance on the laws of war over constitutional and human rights law standards.71 As noted above, in Al Aulaqi, the government claims that the September 18 Authorization for the Use of
                                                             
67

See LUBELL, supra note 53, at 175 (citations omitted) (“Executive Order 12333 . . . has arguments pointing to opposing answers”).
68 69 70

See NILS MELZER, TARGETED KILLING IN INTERNATIONAL LAW 45-46 (2009). Dycus, Banks, & Raven-Hansen, supra note 59, at 66-67.

Mark Mazzetti & Scott Shane, C.I.A. Had Plan to Assassinate Qaeda Leaders, N.Y. TIMES, July 13, 2009, http://www.nytimes.com/2009/07/14/us/14intel.html.
71

See Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss at 4-5, Al-Aulaqi v. Obama, et al, 727 F. Supp. 2d 1 (Sept. 24, 2010) (No. 10-cv-1469), available at http://ccrjustice.org/files/15(1)-Al-Aulaqi%20USG%20 PI%20Opp%20&%20MTD%20Brief_09-25-10.pdf [hereinafter Opposition to Plaintiff’s Motion]. 96

 

Military Force (AUMF),72 which ostensibly granted broad war powers to the executive that include the targeting of Al Qaeda suspects regardless of their location or nationality, is a determinative legal document that places war against terrorism and Al Qaeda formally in the context of an armed conflict.73 The government also relies on the common claim that the actions are justified under international law as self-defense.74 Beyond the international human rights law-based claims, plaintiff also alleges that AlAulaqi’s inclusion on a government kill list violates his Fourth Amendment rights against unreasonable seizure through the government’s attempted use of deadly force, and his Fifth Amendment rights against deprivation of life without due process and violation of due process notice requirements.75 This article will not delve into them for reasons cited above. Suffice is to note that the thrust of the plaintiff’s argument is that a U.S. citizen is deprived of his or her fundamental rights when targeted for extrajudicial killing, especially outside the context of an armed conflict, except under the limited circumstances where the government is using lethal force as a last resort when a citizen faces an imminent threat of death or serious physical injury.76 Again, the point not being either the normative question of whether the plaintiff should have prevailed, nor even the positive question of whether he would prevail, but merely to highlight that these are non-frivolous claims that pose fundamental constitutional questions that may never be subject to any form of judicial review.
                                                             
72 73 74 75 76

Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). See Opposition to Plaintiff’s Motion, supra note 71. See id. (citing, e.g., U.N. Charter art. 51). See Memorandum in Support of Plaintiff’s Motion, supra note 63, at 10-23. See id. 97

 

IV. SOLUTIONS In finding solutions to break down the barriers that prevent cases such as Al-Aulaqi from being heard on their merits in federal courts, this article will look at the three primary areas highlighted in the opinion to determine the most feasible area of reform—next friend standing, third party standing, and the political question doctrine. It will primarily explore areas for Congressional reform, but will also touch on possible areas for judicial action as well. A. Reforming Standing Rules “Standing is the determination of whether a specific person is the proper party to bring a matter to the court for adjudication.”77 According to Chemerinsky, “[s]tanding frequently has been identified by both justices and commentators as one of the most confused areas of the law.”78 “Standing doctrine consists of both constitutional requirements, which are designed to ensure that the courts hear only “cases and controversies,” as required by Article III of the U.S. Constitution, and prudential requirements imposed by the courts.”79 Barring a spectacular shift in public sentiment due to some major unforeseen development leading to constitutional amendments or perhaps a major departure from stare decisis, the focus of reform will be on prudential requirements.

                                                             
77 78 79

CHEMERINSKY, supra note 10, § 2.3.1, at 57. Id. Belk, supra note 14, at 1755 (citing U.S. CONST. art. III, § 1). 98

 

Article III requires that “the plaintiff still must allege a distinct and palpable injury to himself, even if it is an injury shared by a large class of other possible litigants.”80 “But so long as this requirement is satisfied, persons to whom Congress has granted a right of action, either expressly or by clear implication, may have standing to seek relief on the basis of the legal rights and interests of others, and, indeed, may invoke the general public interest in support of their claim.”81 In other words, “Congress may grant an express right of action to persons who otherwise would be barred by prudential standing rules.”82 Chemerinsky provides four main policy considerations for standing limitations: (1) “promotes separation of powers by restricting the availability of judicial review,” to which he notes, “[s]tanding . . . focuses attention directly on the question of what is the proper place of the judiciary in the American system of government”; (2) “serve[s] judicial efficiency by preventing a flood of lawsuits by those who have only an ideological stake in the outcome”; (3) “improve[s] judicial decision-making by ensuring that there is a specific controversy before the court and that there is an advocate with a sufficient personal concern to effectively litigate the matter;” (4) “serve[s] the value of fairness by ensuring that people will raise only their own rights and concerns and that people cannot be intermeddlers trying to protect others who do not want the protection offered.”83

                                                             
80 81

Warth v. Seldin, 422 U.S. 490, 501 (1975) (citation omitted).

Id. at 501 (citing, e.g., Sierra Club v. Morton, 405 U.S. 727, 737 (1972); FCC v. Sanders Radio Station, 309 U.S. 470, 477 (1940)).
82 83

Id. at 501 (citation omitted). CHEMERINSKY, supra note 10, § 2.3.1, at 58-59. 99

 

As part of the third policy consideration, Chemerinsky opines that the “need for specificity” and requirement that a litigant have a personal stake in the matter may not necessarily be the best guarantees of “high quality advocacy,” noting examples of a city passing legislation banning all abortions (surrounding facts would be immaterial) and the best litigator in the country being barred form arguing a case on an issue he is passionate about, while “a pro se litigant with no legal training could pursue the matter on his or her own behalf.”84 Thus, as Chemerinsky aptly notes, “although important values are served by the doctrine of standing, these same values also can often be furthered by expanding who has standing.”85 In this spirit, it appears that the primary means of eliminating the sting of impunity from Al-Aulaqi and other cases pertaining to the counterterrorism policy in the “War on Terrorism” is to expand prudential standing doctrine to encompass more potential plaintiffs. Hindering the expansion of prudential standing in the courts is the sentiment expressed in Al-Aulaqi that the court “cannot subvert the purpose of the Powers prudential standing requirements by ‘adjudicat[ing] . . . rights unnecessarily’ when ‘the holders of those rights . . . do not wish to assert them.’”86 Moreover, Judge Bates highlighted the Supreme Court’s holding in Whitmore stating, “‘[i]t is not for this Court to employ untethered notions of what might be good public policy to expand our jurisdiction in an appealing case.’”87 Where the courts may be unwilling to move forward in expanding prudential standing requirements, Congress could certainly step in. This might be a good moment to pause and
                                                             
84 85 86 87

Id. at 59 Id. at 60. Al-Aulaqi, 727 F.Supp.2d at 33 (quoting Singleton v. Wulff, 428 U.S. 106, 114 (1976)). Id. (quoting Whitmore v. Arkansas, 495 U.S. 149, 161 (1990)). 100

 

recognize that, at least as the current political environment stands, it is unlikely that Congress would want to take actions that essentially expand the ability of the federal courts to hear sensitive terrorism-related cases. While recognizing this political reality, it is still worth exploring the opportunities for reform because the political winds often shift quickly, and given that these would be fairly technical legislative changes, it is possible that some reform could pass with minimal attention and political upheaval. In Elk Grove Unified School District v. Newdow, the Supreme Court said, “[a]lways we must balance ‘the heavy obligation to exercise jurisdiction, against the ‘deeply rooted’ commitment ‘not to pass on questions of constitutionality’ unless adjudication of the constitutional issue is necessary.”88 This begs the question of when “adjudication of the

constitutional issue is necessary.” It is difficult to foresee a heavier obligation brought to bear than a case that deals with an executive’s claim to unchecked power to target a U.S. citizen for extrajudicial killing using a list that is created using secret standards and methods. If the fundamental right to life, along with other alleged violations under the Fourth and Fifth Amendments, as well as violations under international law, are not heavy enough judicial obligations to find that “adjudication of the constitutional issue is necessary” to overcome the “deeply rooted commitment ‘not to pass on questions of constitutionality,’” it is difficult to imagine a case that could carry a heavy enough obligation to satisfy the courts. 1. Next Friend Standing

                                                             
88

Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (citations omitted). 101

 

“The preference for plaintiffs with a personal stake in the case has become an important aspect of the law of next friend standing.”89 While on its face this preference is not problematic and does in fact support the policy goals attributed to standing limitations, it is the courts’ understanding of what constitutes a personal stake in a case that is in need of careful reform. Recall that in Al-Aulaqi the court denied next friend standing to Al-Aulaqi’s father because, in spite of Al-Aulaqi’s forced hiding due to the reportedly real threat against his life, the court found that he still had sufficient access to the U.S. courts should he decide to avail himself of that right.90 The court also found that the father could not show that he was acting in the best interests of his son, as his son purportedly had shown a disdain for the U.S. judicial system and system of laws and government generally.91 However, overriding concerns about separations of powers and denial of individual rights caution against accepting this doctrinal status quo. Regarding the Whitmore factors, the Al-Aulaqi decision demonstrates the needs for a more inclusive standard for both the inability to access the courts and for acting in another’s best interest in court proceedings. There should be a provision that explicitly finds that a citizen’s discovered inclusion on an extrajudicial “kill list” results in a per se denial of access to the U.S. courts, as it can logically be presumed that any rational actor would fear being killed by the U.S. government during any attempt to assert his or her rights, including in transit to turn oneself in to authorities, or in communication with family members or U.S. lawyers. Moreover, it is also problematic that there were no charges filed against Al-Aulaqi in either the U.S. or Yemen, so it is questionable as to why he should surrender to a U.S. embassy or consulate.
                                                             
89 90 91

Belk, supra note 14, at 1756. Al-Aulaqi, 727 F.Supp.2d at 20-23. Id. at 22-23. 102

 

It is, of course, important to keep in mind the other policy reasons for prudential limitations on standing. The courts should ensure that any expansion is not so broad that it results in a flood of litigation. The courts should also ensure that such claims are fully and zealously litigated. While the current prudential standing rules address most of these concerns, the denial of next of friend status to Al-Aulaqi’s father, who is probably the only person able to represent his son, indicates a need for narrow reform. Congressional action could formally establish plaintiff’s contention that “prudential concerns weigh heavily in favor of conferring next friend standing.”92 Again, it will be important to keep any expansions as narrow as possible so as not to disturb generations of carefully construed prudential standing doctrine. 2. Third Party Standing Third party standing prohibitions are largely prudential, “which means that the courts and Congress may fashion exceptions, such as next friend standing and third-party standing.”93 However, recall that in Al-Aulaqi, the court found that “a plaintiff can only establish an Article III injury in fact based on emotional harm if that alleged harm stems from the infringement of some ‘legally protected,’94 or ‘judicially cognizable,’95 interest that is either ‘recognized at common law or specifically recognized as such by the Congress,’”96 and that Al-Aulaqi’s father

                                                             
92

See Reply Memorandum in Support of Plaintiff’s Motion, supra note 12, at 11 (citing Rosenberg v. United States, 346 U.S. 273, 294 (1953) (Clark, J. concurring for six Justices)).
93 94 95 96

Belk, supra note 14, at 1755-56. CHEMERINSKY, supra note 10, § 1.4.3, at 25 (quoting Lujan, 504 U.S. at 560). Id. (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). Id. (quoting Sargeant v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997)). 103

 

was barred from bringing suit on this basis.97 What constitutes a legally protected or judicially cognizable interest is thus a key means by which Congress could expand the scope of justiciable claims. The constitutional requirements of standing include the finding of an injury in fact. Judge Bates interpreted the current doctrine to bar the use of third party standing in Al-Aulaqi. Although the requirement of concrete and particularized injury in fact is one of the constitutional requirements under Article III, prudential requirements are still a substantial part of determining what constitutes an injury. In Al-Aulaqi, it was, in part, a finding that the father lacked an injury himself that barred the application of third party standing.98 In the decision, Judge Bates reasoned that the court, like the D.C. Circuit, “‘does not minimize the devastating loss that a parent can experience from the death of an adult child,’” “in light of the marked changes that occur in the parent-child relationship once a child reaches the age of majority.”99 The opinion reasons, that “not all devastating losses constitute invasions of judicially cognizable interests. And absent an invasion of such an interest, plaintiff cannot show that he has suffered the requisite Article III injury in fact needed to establish third party standing.”100 Thus, to alter this prudential requirement to give Al-Aulaqi’s father the requisite injury in fact for third party standing will require a law that incorporates the “holding that a parent enjoys a legally protected interest in his relationship with

                                                             
97 98 99

See Al-Aulaqi, 727 F.Supp.2d at 25-26. See id. at 24-25. Id. at 28 (quoting Butera v. Dist. of Columbia, 235 F.3d 637, 656 (D.C. Cir. 2001)). Id. 104

100

 

his adult child.”101 It is possible to make this reform specifically applicable to Al-Aulaqi, without having to go as far as recognizing the relationship between adult parents and adult children as a fundamental right. Indeed, the key in establishing this legally protected interest will be to construct a sufficiently narrow statute that allows for a third party suit based on permanent deprivation of the adult-parent and adult-child relationship that would allow for suits in similar extreme circumstances such as in Al-Aulaqi, but would not result in a flood of new claims. While it should be investigated further, likely in consultation with the courts, the idea would be to allow for this legally protected interest in a relationship between an adult child and adult parent only in instances where the relationship was being endangered by an extrajudicial threat to the life, and perhaps even of indefinite detention of one of the parties, where the party being targeted does not have reasonable recourse to the U.S. courts. Given that there is extensive literature committed to the topic of third party standing alone, it will suffice to simply note that it is difficult to accept that organizations whose primary reason for existence is to promote, protect, advocate, or otherwise further a cause that is the subject of the litigation would not have sufficient incentive to make the case truly adversarial. Moreover, the expansion of third party standing would have an additional advantage of lessoning the risks and burdens that individual “test” plaintiffs would have to face in challenging the government in such important separation of powers cases. In addition, there is the likely outcome of getting the best litigators to pursue fundamental statutory and constitutional issues. 3. Political Question Doctrine

                                                             
101

Id. 105

 

In Baker v. Carr, the Supreme said, “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”102 Unfortunately, as noted earlier, the Political Question Doctrine is confusing due to the inarticulate criteria promulgated by the Supreme Court. Nearly every case considering the doctrine cites the following passage from Baker v. Carr103: Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.104 The doctrine is notably confusing, with Chemerinsky noting that the doctrine can (only) be understood “by examining the specific areas where the Supreme Court has invoked it. Specifically . . . the republican form of government clause and the electoral process; foreign affairs; Congress’s ability to regulate its internal processes”; etc.105 Leaving aside the broader debate as to whether there should be a political question doctrine for another day, the more important question is whether, apart from a constitutional amendment or radical shift in the Supreme Court, there is any possibility of changing the Doctrine.
                                                             
102 103 104 105

Baker v. Carr, 369 U.S. 186, 211 (1962). CHEMERINSKY, supra note 10, § 2.6.1, at 149. Baker, 369 U.S. at 217. CHEMERINSKY, supra note 10, § 2.6.1, at 150. 106

 

Chemerinsky claims that, “[p]erhaps as a reflection of this debate,” it is uncertain whether the Political Question Doctrine is constitutional, prudential, or a combination of both. He notes that, “[u]nlike the other justiciability doctrines, the political question doctrine is not derived from Article III’s limitation of judicial power to ‘cases’ and ‘controversies.’”106 Thus, this is an uncertain area that Congress could take the opportunity to test. The courts could also seize upon this uncertainty and declare that it is a prudential consideration and essentially find that in the interest of justice, instances where the deprivation of individual liberties, perhaps limited to cases where fundamental individual rights are at stake (and perhaps limiting further, to only the right to life and/or denial of due process), the courts have the power to make the final determination on what is constitutional (perhaps they could also take the opportunity to clean up the Doctrine in general). This approach would hearken back to the more limited understanding of the political question doctrine that Chemerinsky describes, as it was created and articulated by the Supreme Court in Marbury v. Madison.107 According to Chemerinsky, “Chief Justice Marshall contrasted political questions with instances where individual rights were at stake; the latter, according to the Court, never could be political questions.”108 Given the government’s interest in protecting secret information related to national security that could directly harm the security of its people, it may be too late to fully return to the limited doctrine as espoused in Marbury. However, given the proven, although far from uncontested, ability of the courts to handle complex cases

                                                             
106 107 108

Id. § 2.6.2, at 153. Id. § 2.6.1, at 148. Id. (citing Marbury v. Madison, 5 U.S. 137, 170 (1803)). 107

 

involving classified government documents pertaining to national security,109 where the court can view documents in camera and under seal as the circumstances require, the Court or Congress could at least create a standard of review that requires that the government’s claim is reasonable and supported by some level of evidentiary basis, which could be determined after consultation between the branches. Such a process would at least allow the courts to serve as a check to ensure that the government is not merely trying to hide embarrassing or illegal activities from the public and the courts, would ensure that the government has the proper incentive to build support for their actions, and would serve the courts by giving them increased power and legitimacy. CONCLUSION In searching for solutions to restore a balance of powers and prevent impunity by the executive branch, it is important to look to the fundamentals of our judicial system, including court procedures. “What distinguishes a mature society . . . is not the absence of disputes, but the capacity for a just and efficient resolution of these disputes.”110 Moreover, “[i]t is within the court's duty to ensure that power is never ‘condense[d] … into a single branch of government.’"111
                                                             
109

See Reforming the State Secrets Privilege: Statement of the Constitution Project’s Liberty and Security Committee & Coalition to Defend Checks and Balances, THE CONSTITUTION PROJECT (May 31, 2007), http://www.constitutionproject.org/libout.php?fid=194 (discussing the ability of the federal courts to handle complex, sensitive, and classified evidence pertaining to national security).
110 111

SAMUEL ISSACHAROFF, CIVIL PROCEDURE 17 (2d ed. 2009).

ACLU v. Nat'l Sec. Agency / Central Sec. Serv., 438 F. Supp. 2d 754 (E.D. Mich. 2006), vacated and remanded, ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (quoting Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion)). 108

 

Given that justiciability limitations necessarily speak to either constitutional or, primarily self-imposed, prudential limitations on the courts’ ability to adjudicate certain claims, it is important to keep the larger separation of powers arguments in mind when reforming justiciability doctrine. The dismissal of the case in Al-Aulaqi underscores how easily

fundamental question regarding the overextension of executive power can go unchecked when legal doctrines are not developed with this broader purpose in mind. The result is impunity for serious government actions, including involuntary detainee transfers, indefinite detentions overseas, domestic surveillance, and now the extrajudicial killing of a U.S. citizen overseas in a country that is claimed to be outside of any zone of armed conflict. Fortunately, the doctrine is not completely inflexible. Given the right political climate or adjustment in doctrine by the Court, relatively narrow reforms can be made that will allow the courts to address these fundamental constitutional issues, while still staying true to the important policy rationales that has led to the development of these rules as they currently stand. In Public Citizen v. United States Dep't of Justice, Justice Kennedy reminded us, "[i]t remains one of the most vital functions of this Court to police with care the separation of the governing powers . . . . When structure fails, liberty is always in peril."112

                                                             
112

Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 468 (1989) (Kennedy, J., concurring). 109

 

The Traffick Network: How Social Media Aids in International Slavery By Alison Owens* Human trafficking is one of the fastest growing illegal industries in the world, and, in recent years, this growth is largely due to the use of the Internet.1 “A recent [United States] Government estimate indicates that approximately 800,000 - 900,000 people annually are trafficked across international borders worldwide and between 18,000 and 20,000 of those victims are trafficked into the United States.”2 Under United Nations’ trafficking protocol, “only the recruitment and use of child soldiers under any and all conditions” qualifies as human trafficking.3 However, there are many other instances and common practices that seem to constitute human trafficking, also known as “modern-day slavery.” The use of the Internet, especially in recent years, often facilitates these transactions. Craigslist, Facebook, and other popular Internet networking websites have helped international trafficking rates skyrocket,

                                                             

* Impunity Watch Managing Editor—Journal, 2011-2012; J.D. Candidate, Syracuse University College of Law, 2012; B.A. Political Science and History, Northeastern University, 2009. I would like to thank my fiancé, Craig, as well as my parents, my sister, and my future in-laws for their unwavering love, support, and guidance throughout my law school career. I am also grateful for my fellow staff-members on Impunity Watch for their hard work, dedication and the for friendships we have developed over the past few years.
1

Marie Szaniszlo, Bill Targets Human Traffickers in Mass., BOSTON HERALD, Jan. 21, 2011, http://news.bostonherald.com/news/politics/view/20110121bill_targets_human_traffickers_in_m ass.
2

Judge Mohamed Chawki & Dr. Mohamed Wahab, Technology Is a Double-Edged Sword: Illegal Human Trafficking in the Information Age, COMPUTER CRIME RESEARCH CENTER, Mar. 5, 2005, at 2, http://www.crime-research.org/articles/Mohamed2/.
3

ALEXIS A. ARONOWITZ, HUMAN TRAFFICKING, HUMAN MISERY: THE GLOBAL TRADE IN HUMAN BEINGS 127 (Graeme R. Newman ed., 2009). 110

 

sometimes right out in the open, and, typically, without the knowledge or condemnation of the general public. The less stringent regulations in certain countries facilitate the ease of trafficking via the Internet. In Indonesia, Facebook is commonly used for trafficking purposes.4 Willis Wee’s article for Tech in Asia details how Facebook is used as a main channel for human trafficking.5 Many of Facebook’s seemingly non-threatening applications, including the popular Pphoto application, works as an aid for trafficking rings and allows the sharing of victims’ photos prior to a sale or trade.6 “The client looks through the photos and contacts the ‘agent’ once he decides to buy one of the girls. Even though [it is believed that] the group was created only for private members, the choice of using Facebook [is] still [shocking],”7 especially since it is a violation of the social networking site’s Terms and Conditions, and such violations can be reported with the click of a button. Indonesia has over thirty-three million Facebook users, a Facebook population second to only the United States.8 Even though it may seem risky to operate trafficking rings over such an open network, it has been going on for about three years.9 According to Wee’s article, Indonesia

                                                             
4

Willis Wee, How Facebook is used for Human Trafficking in Indonesia, TECH IN ASIA, Jan. 20, 2011, http://www.techinasia.com/how-facebook-is-used-for-human-trafficking-in-indonesia/.
5 6 7 8 9

Id. Id. Id. Id. See Wee, supra note 4. 111

 

has one of the highest instances of human trafficking, and the use of the Internet to facilitate transactions has increased the trafficking rate.10 Although human trafficking and the lack of Internet regulations and enforcement may seem like a foreign problem, the Internet is also widely used for facilitation of trafficking in areas that hit much closer to home. Change.org reports: “on December 18, [2010,] Craigslist removed their commercial sex ads from their sites.”11 This source goes on to state that, after years of criticism, the website, which is often used as an online version of a “classifieds section” or marketplace, recently blocked the “adult services” section link to ads in the United States.12 However, the “adult services” section continues to operate in some other countries.13 Domestically, there have been ways around this removal, and trafficking rings have been forced to get more creative with their use of networking sites. In January 2011, Massachusetts Attorney General Martha Coakley proposed a bill in her state that would make trafficking for sexual servitude punishable by up to twenty years in prison and trafficking for forced labor punishable by up to fifteen years.14 The bill also includes the option of a life sentence for anyone convicted of trafficking children under the age of eighteen.15

                                                             
10 11

See id.

Amanda Kloer, Ask Craigslist to Stop Advertising Human Trafficking Outside the U.S., CHANGE.ORG (Dec. 20, 2010), http://www.change.org/petitions/ask-craigslist-to-stopadvertising-human-trafficking-outside-the-us.
12 13 14 15

Id. Id. Szaniszlo, supra note 1. Id. 112

 

With an estimated 27 million people exploited worldwide, bringing in about $32 billion annually, human trafficking is the second-largest illegal industry, behind only drug trafficking, Coakley said. And it is thriving not only in cities, but in wealthy suburbs, where women and children, often brought from other countries, are held captive, forced to work as servants and often physically or sexually abused, said state Sen. Mark C. Montigny (D-New Bedford), one of the bill’s sponsors.16 Massachusetts is one of only five states in the United States that does not already have a law like this in place, which left the Boston police commissioner “blown away.”17 Massachusetts

recognizes the increased presence of human trafficking through use of the Internet, and hopefully the lengthy punishments proposed in the bill will help eliminate online sex advertisements in Massachusetts. In November 2011, the bill was passed by the Massachusetts House of

Representatives18 and was subsequently signed into law by Governor Deval Patrick.19 Contrary to the increased efforts to combat human trafficking in Massachusetts, former NFL star Lawrence Taylor recently plead guilty in a New York court to “sexual misconduct and paying a 16-year-old sex trafficking victim for sex.”20 In return, Taylor pled guilty to only a misdemeanor charge, which requires probation and registration as a sex offender, but carries no jail time.21 The prosecutor in Taylor’s case, Patricia Gunning, believed that this lesser charge
                                                             
16 17 18

Id. Id.

Press Release, Mass. Office of the Att’y Gen., AG Coakley Commends Passage of Human Trafficking Legislation (Nov. 15, 2011), available at http://www.mass.gov/ago/news-andupdates/press-releases/2011/ag-commends-passage-of-human-trafficking-bill.html.
19 20

See Act Relative to the Commercial Exploitation of People, ch. 178, Mass. Laws of 2011.

Deborah Richardson, Justice FAIL: Lawrence Taylor Walks Free, HUFFINGTON POST, Jan. 17, 2011, http://www.huffingtonpost.com/deborah-richardson/lawrence-taylor-walksfree_b_809259.html.
21

Id. 113

 

was “acceptable” because Taylor cooperated and helped human trafficking investigations.22 However, Deborah Richardson, the Chief Program Officer of the Women's Funding Network, commented to the Huffington Post that there should be “no room for acceptance in our civil society for men who buy sex with girls.”23 A 2010 survey performed by Women's Funding Network found at least 160 total cases of human trafficking reported in forty-one states and the District of Columbia.24 Victims averaged around fourteen to fifteen years of age.25 Women’s Funding Network also found that at least one third of the reported cases involved trafficking girls through use of the Internet, and one fifth of the overall reported cases specifically mentioned the online classified advertising website Backpage.com.26 “The sex trade has moved off of the streets and into the web, and the girls are getting younger and younger,” says Amber Lyons, a reporter for CNN on the special, “Selling the Girl Next Door.”27 In the CNN special, Lyons visited a juvenile detention center in Las Vegas, Nevada, where she encountered several young victims of human trafficking, some as young as thirteen, who all had a history of running away from home, and none of whom were native to Nevada.28 Many of these girls were first victimized through the use of websites such as

                                                             
22 23 24 25 26 27

Id. Id. Id. Richardson, supra note 18. Id.

Selling the Girl Next Door (CNN television broadcast Jan. 23, 2011), transcript available at http://transcripts.cnn.com/TRANSCRIPTS/1101/23/cp.01.html.
28

Id. 114

 

Backpage.com, and although they are victims of trafficking and not criminals themselves, they are being locked up and literally chained up in juvenile delinquency centers.29 The good news is that, behind bars, they are safe from the pimps and traffickers that victimized them in the first place. After being picked up on a street in Las Vegas, thirteen-year-old Selena was being sold four or five times a day for the rate of 300 dollars per hour, and feared for her life when she dreamt of fleeing.30 Backpage.com is a relatively new hotspot for both traffickers and solicitors of prostitutes, often known as “johns”. It functions much like Craigslist and provides legal services and classified ads, as well as illegal escort and “adult services” ads. Lyons reports that websites like Backpage and Craigslist have a turnaround rate of about thirty minutes, and, thus, a young, illegally prostituted victim of human trafficking can arrive to someone’s home in about the same amount of time as a pizza.31 Pimps, traffickers and johns are among the most diverse group of any criminals, with an age range spanning from about twenty to eighty or ninety, economic statuses ranging from impoverished to wealthy, and career paths as diverse as they come.32 In the United States, underage girls, often runaways, are lured in by traffickers with gifts and money, and are forced to have sex with as many men a day that they can schedule.33 Craigslist users often use code words instead of age in order to sell underage girls on the site; words like “fresh”, “young”, and “new girl in town” are used to identify an underage girl to a
                                                             
29 30 31 32 33

Id. Id. Id. Selling the Girl Next Door, supra note 25. Id. 115

 

potential “customer.”34

The Craigslist adult services section has been referred to as the

“Walmart” of child sex trafficking by victims advocates groups.35 After outcry from victims advocates groups, district attorneys, attorney generals, and the general public, Craigslist founder Craig Newmark finally took down the adult services section of Craigslist.36 Immediately after the section was removed, the number of Backpage.com users skyrocketed, and profits from its five-dollar per-escort-ad fee did as well.37 Subsequently, Backpage reported that they were initiating a “holistic plan” to attempt to rid the site of criminal activity, but the only noticeable change during the month after the alleged plan was launched was that there were no longer any nude photographs on Backpage, with the escort ads remaining.38 Dennis Hoff, the owner of the famed Bunny Ranch, a legal brothel in Nevada, speculates that young girls are kidnapped and trafficked more often than adults, not specifically because of their age or childlike appearance, but because they are easily manipulated.39 Craigslist and Backpage are not the only Internet venues that aid in human trafficking. Trafficking can be achieved through the use of almost any type of website. Online photo sharing websites allow for easy cataloging of victims for sale or trade.40 Change.org,
                                                             
34 35 36 37 38 39 40

According to Amanda Kloer, Editor at

Id. Id. See Selling the Girl Next Door, supra note 25; Kloer, supra note 10. Selling the Girl Next Door, supra note 25. Id. Id. Amanda Kloer, The Internet’s Role in Human Trafficking, CHANGE.ORG (Sept. 20, 2009), 116

 

[Photo sharing sites allow] for mass dissemination of child pornography without having to worry about being caught by the nosy developer or mail carrier. Online picture catalogues help buyers choose a girl as an “escort” or sometimes even as a wife. Online ordering of women has revolutionized how some traffickers do business.41 Mobile upload technology and photo text messaging technology works similar to online photo sharing technology and provides a fast and easy way for trafficking rings and traffickers to share photos of victims for sale.42 Social networking sites connect traffickers and are also used to research potential victims.43 Pornographic websites, even legal ones, are also used by traffickers to groom child victims.44 Traffickers can use the Internet to easily facilitate payment for victims through Ecommerce tools similar to PayPal, and even through standard credit card use.45 Ironically, encryption technologies, which are typically meant to protect personal information from getting into the wrong hands, are used by traffickers for their own protection.46 The encryption

technologies make “transactions, information trails, and conversations . . . difficult to impossible to detect by law enforcement.”47

                                                                                                                                                                                                    

http://news.change.org/stories/the-internets-role-in-human-trafficking.
41 42 43 44 45 46 47

Id. Id. Id. Id. Kloer, The Internet’s Role in Human Trafficking, supra note 40. Id. Id. 117

 

The Internet provides less discreet ways of being involved in domestic and international trafficking as well. Certain massage parlors in Houston, TX don’t even hide the fact that they offer sex for sale, mainly provided by victims of trafficking. 48 Websites reviewing the services of the massage parlors provide users the option to rate the women they’ve had sex with at the parlors.49 For example, “My Red Book” operates in a similar manner as “Yelp” and

“Citysearch,” allowing users to create anonymous usernames in order to review the services they received. The websites allow users to rate things like the size of girls’ breasts and what sexual services the users were provided during their visit to the massage parlor.50 Although clients of the parlors don’t necessarily know that the girls who work there have been trafficked and enslaved, they almost universally have been.51 Many of the girls are even locked away in small crawl spaces and secret rooms when the parlors are closed for the evening. There is a light at the end of the tunnel. Growing awareness of the issue of human trafficking has led to research, websites, articles, television specials, and the fact that President Obama declared January “National Slavery and Human trafficking Prevention Month.”52 In addition, websites like Love146.org53 and others attempt to raise funds for prevention awareness.
                                                             
48

Sex Slaves in America (MSNBC television broadcast Feb. 6, 2011) (Transcript available at http://www.msnbc.msn.com/id/22056066/ns/msnbc_tv-documentaries).
49 50 51 52

Id. Id. Id.

Presidential Proclamation - National Slavery and Human Trafficking Prevention Month, (Jan. 04, 2010), http://www.whitehouse.gov/the-press-office/presidential-proclamation-nationalslavery-and-human-trafficking-prevention-month.
53

End Child Slavery and Exploitation, LOVE146, http://love146.org/ (last visited Feb. 20, 2011). 118

 

If enough websites and Internet resources pledge to combat international human trafficking, hopefully the use of this technological tool as an aid to human trafficking will decrease over time.

119

 

Gender-Based Persecution as a Basis for Asylum in the United States: Structural and Procedural Defects Jacquelyn Grippe* INTRODUCTION We are a nation of immigrants. The laws and policies affecting the ways in which the United States regulates non-citizens operating within its borders have a complex and conflicting history. In recent history, regulation of migration has changed dramatically as a result of the attacks on September 11, 2001. The government’s systematic recognition of refugees from other countries who are granted temporary and permanent residency in the U.S. for humanitarian reasons is a relatively new aspect of U.S. law.1 The experience of non-citizen women who have incurred genderrelated violence in other countries and have subsequently sought asylum in the U.S. has become a central issue in U.S. refugee law. Such women must confront structural and procedural defects within U.S. laws related to asylum. Refugee jurisprudence has been further complicated by governmental restructuring that occurred after September 11, 2001. After 9/11, there has been an anti-immigrant fear in the U.S. that continues to permeate U.S. domestic and foreign policy. Although post-9/11 policies have largely been aimed at protecting the U.S. from terrorist attacks, their effects on laws relating to
                                                             
*

Impunity Watch, Notes and Comments Editor, 2011-2012; J.D. Candidate, Syracuse University College of Law, 2012; M.A. International Relations Candidate, Maxwell School for Citizenship and Public Affairs, 2012; B.A. Cultural and Interdisciplinary Studies, Antioch College, 2006. I want to thank my wonderful boyfriend AJ, my mother Terry, and my sister Elizabeth for all of their love and patience through this roller coaster ride called law school. Additionally, I would like to thank Prof. Culbertson for all of his help and guidance. Lastly, I would like to thank the staff of Impunity Watch for their hard work.
1

The Refugee Act of 1980, 8 U.S.C §1521 (1980). 120

 

immigration and asylum have exceeded such intentions.

Non-citizen women who have

experienced gender-based violence have historically faced unique barriers in their attempts to attain asylum in America, and those barriers have been exacerbated through legislation and policy enacted by the U.S. government after 9/11. I. DOMESTIC LAW RECOGNIZES THE RIGHT TO REFUGEE STATUS The American legal system grants systematic refugee status to non-citizens for humanitarian purposes.2 The constitutional right to regulate laws pertaining to asylum is vested in Congress.3 Since 9/11, Congress has legislatively enhanced the authority for judicial review of asylum claims under government agencies within the executive branch. A. Constitutional Authority The Constitution explicitly vests Congress with the authority to regulate foreign commerce and, “[t]o establish a uniform Rule of Naturalization.”4 Although the Constitution does not expressly grant Congress the authority to regulate immigration, the Supreme Court has recognized it as having plenary power to “set the conditions for entry into the country, the circumstances under which a person can remain, and the rules for becoming a citizen.”5 The Court has held that “over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”6 Furthermore, “[w]hen Congress prescribes a
                                                             
2 3 4 5

Id. U.S. CONST. art 1, § 8. Id.

ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES 283 (VICKI BEEN et al. eds., 3rd ed. 2006). 121

 

procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.”7 B. Post-9/11 Legislation The Homeland Security Act of 2002 affected a dramatic restructuring of the U.S. government’s strategy for monitoring peoples within U.S. territories, particularly those who are not native born U.S. residents. The Homeland Security Act created the Department of Homeland Security (DHS), which absorbed the Immigration and Naturalization Services (INS).8 With the elimination of the INS, the DHS became a supervising umbrella agency responsible for regulating the various agencies that were once embodied within the INS.9 These agencies included the U.S. Citizen and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement, and the U.S. Customs and Border Protection.10 While the Homeland Security Act represented a larger reorganization of national security policy, Congress passed additional measures with more specific goals. The USA Patriot Act of 2001, for example, increased border security.11 The Real ID Act of 2005 (“Real ID”),

                                                                                                                                                                                                    
6 7

Fiallo v. Bell, 430 U.S. 787, 792 (1977).

Michael A. Scaperlanda, Immigration Law: A Primer, 2009 FED. JUD. CTR. (quoting Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950)), available at http://www.fjc.gov/public/pdf.nsf/ lookup/immlaw09.pdf/$file/immlaw09.pdf.
8 9 10 11

Id. at 12. Id. Id. Id. 122

 

restructured judicial policies relating to immigration.12 Although these post 9/11 policies focus on combating terrorism, they also impact non-citizen women who experience gender-based violence.13 Real ID has altered the experience of non-citizen women in the U.S. because it contains multiple provisions that modify the asylum process in ways that conflict with the U.S. Gender Asylum Guidelines.14 The legislation implements asylum altering measures, in addition to other provisions, that impose heightened standards for state identification cards, enhanced security measures at U.S. borders, amend grounds for inadmissibility to and removal from the U.S., and limit judicial review for orders of removal.15 Additionally, Real ID makes the process of review more stringent through the implementation of heightened standards of review and by giving more discretion to Immigration Judges (IJs).16 Critics of Real ID argue that the provisions amend U.S. asylum policy in a way that imposes limitations on all applicants' access to asylum protection through the implementation of “more difficult, unpredictable and unreasonable obstacles to establishing the requisite well-founded fear of persecution.”17 In addition to the implementation of specific legislation after 9/11, the creation of the DHS restructured the government’s approach in dealing with immigration and asylum. The goal
                                                             
12 13 14

Scaperlanda, supra note 7, at 14. 8 U.S.C. § 1103 (2006).

Aubra Fletcher, The REAL ID Act: Furthering Gender Bias in U.S. Asylum Law, 21 BERKELEY J. GENDER L. & JUST. 111, 118 (2006).
15 16 17

Id. at 111. Id. Id. at 112. 123

 

of the restructuring continues to be the creation of a national strategy for homeland security, providing a framework to meet the agency goals of: (1) preventing and disrupting terrorist attacks; (2) protecting the American people, the critical infrastructure, and key resources; (3) responding to and recovering from incidents that do occur and; (4) continuing to strengthen the foundation to ensure long-term success.18 However, the restructuring that has resulted from the creation of the DHS, particularly the restructuring within the Department of Justice (DOJ), has had unique consequences for asylum seekers whose claims are rooted in allegations of genderbased violence. C. Judicial Review The Executive Office for Immigration Review (EOIR) operates within the DOJ and is charged with adjudicating immigration cases.19 The office operates under the authority of the U.S. Attorney General, within the executive branch, to conduct immigration court proceedings, appellate reviews, and administrative hearings.20 The EOIR’s is main function includes deciding “whether foreign-born individuals, who are charged by the [DHS] with violating immigration law, should be ordered removed from the United States or should be granted relief or protection from removal and be permitted to remain in this country.”21

                                                             
18

Dep’t of Homeland Sec., THE NATIONAL STRATEGY FOR HOMELAND SECURITY (Oct. 2007),

http://www.dhs.gov/xabout/history/gc_1193938363680.shtm (last visited Dec. 10, 2010).
19

U.S. DEP’T OF JUSTICE, EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, http://www.justice.gov/eoir/index.html (last visited Dec. 10, 2010).
20 21

Id. Id. 124

 

The EOIR is comprised of three main components: The Office of the Chief Immigration Judge (OCIJ), the Board of Immigration Appeals (BIA), and the Office of the Chief Administrative Hearing Officer (OCAHO). The OCIJ has over has more than 235 IJs who conduct administrative court proceedings or removal proceedings in fifty-nine immigration courts nationwide.22 The BIA acts as the appellate component within the EOIR structure, reviewing appeals of IJ decisions.23 The OCAHO primarily hears cases pertaining to

immigration and employment, and does not hear cases pertaining to removal proceedings.24 Those who seek asylum or the withholding of removal can do so affirmatively through a USCIS asylum officer or defensively as part of a removal hearing before an IJ.25 If the claim for asylum is denied, the applicant can seek judicial review within the EOIR.26 If both the OCIJ and the BIA deny an application, a non-citizen applicant can seek review from the U.S. Court of Appeals. The circuit courts give great deference to the decisions made by the EOIR.27 Although the circuit courts may remand a case in which the BIA issued a ruling

                                                             
22 23 24 25

Id. See id. See U.S. DEP’T OF JUSTICE, supra note 19.

U.S. CITIZENSHIP & IMMIGRATION SERV., http://www.uscis.gov/portal/site/uscis/menuitem. 5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b1b2549bf0683210VgnVCM100000082ca60 aRCRD&vgnextchannel=f39d3e4d77d73210VgnVCM100000082ca60aRCRD (last visited Apr. 10, 2012).
26 27

Id.

Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication, 60 STAN. L. REV. 295, 310 (2007) (interpreting Gjerazi v. Gonzales, 435 F.3d 800 (7th Cir. 2006); Camara v. Ashcroft, 378 F.3d 361 (4th Cir. 2004)). 125

 

contrary to the law, the final determination of the applicant’s asylum claim should be remanded to the BIA.28 The EOIR structure violates the separation of powers doctrine. The U.S. Constitution sets forth a framework where the legislature creates the laws, the executive enforces the laws, and the judiciary interprets the laws. The DHS restructuring meant that the EOIR was absorbed into the INS framework within the executive branch. Administrative courts—courts within the executive branch that are charged with the regulatory administrative law applying to public officials and public agencies—are not unique to the DHS structure. However, the restructuring of the EOIR within the DHS provides a ‘one stop shop’ for all immigration matters. Because the restructuring allows the EOIR to both interpret and administer U.S. immigration law, it obscures the boundary between executive and judicial authority. Real ID is a congressional effort to streamline various immigration review processes that placed significant limitations on the possibility for judicial review of asylum claims in federal district courts.29 Real ID stripped federal district courts of the jurisdiction authorizing their review of important issues related to removal orders including the authority to review agency judgments that grant or deny waivers of inadmissibility related to crime and fraud, review of decisions regarding cancellation of removal pursuant to the Immigration and Naturalization Act (INA) §§ 240(A) and 240(B), and the review of agency discretionary decisions.30 Although Real
                                                             
28

Id. (citing INS v. Ventura, 537 U.S. 12 (2002)). (The Supreme Court held that the 9th Circuit erred in reversing a decision from the BIA denying a claim for asylum. The Supreme Court noted that district courts should generally remand cases to agencies for decision of fact when that agency is acting within the scope of a statutorily mandated authority.).
29 30

Scaperlanda, supra note 7, at 11-12, 18. Id. at 10 (citing 8 U.S.C.A. § 1252 (2005)). 126

 

ID does acknowledge the federal courts’ jurisdiction over Constitutional questions and questions of law, certain asylum issues requiring discretionary judgment—like whether an applicant has demonstrated “exceptional and unusual hardship”—has been deemed unreviewable by the federal courts.31 The federal courts, in interpreting a component of Real ID, have noted the exceptional deference given to the executive branch by Congress, stating that, The statutory language indicates that the decision is left to the discretion of the Secretary [of Homeland Security]. The only language that indicates that the discretion could be limited is the ‘good and sufficient cause’ phrase. However, when read in context and as a whole, the statute makes clear that Congress delegates to the Secretary the decision to determine what constitutes good and sufficient cause. . . . Congress’s intent is apparent: the good and sufficient cause is what the Secretary deems it to be.32 With the passage of Real ID, the legislature’s grant of authority to the executive branch has eradicated much of the judicial function, hindering the constitutional process of checks and balances. Although attempting to seek uniformity in the adjudication of asylum claims, Real ID actually threatens the uniformity of these decisions through the grant of increased discretion to IJs.33 Studies have suggested that the assessment of asylum applications by IJs is not uniform, and that the merits of the application actually have very little correlation to their success.34 Rather, the success of asylum applications “appear to depend to a large extent on the identity, personal characteristics, and prior work experience of the adjudicator, as well as on whether or

                                                             
31 32 33 34

Id. at 15 (quoting De La Vega v. Gonzales, 436 F.3d 141, 146 (2d Cir. 2006)). Id. at 15-16 (quoting Ghanem v. Upchurch, 481 F.3d 222, 224 (5th Cir. 2007)). Fletcher, supra note 14, at 124-125. Id.; Ramji-Nogales et al., supra note 27, at 303. 127

 

not the asylum applicant had representation or dependents in the United States.”35 Real ID expands the opportunity for these types of discretionary rulings by IJs through the abrogation of precedential decisions, which gave applicants “the benefit of the doubt” in providing evidence to corroborate credible testimony.36 The new standard implemented through the passage of Real ID mandates that there is “no presumption of credibility,” deviating from past precedent.37 Real ID further allows the trier of fact to weigh credible testimony along with other evidence in determining whether the applicant has met his or her burden, giving the IJs extensive opportunity and ability to interpret different pieces of evidence and testimony subjectively.38 The IJ’s analysis of asylum claims predicated on gender-based violence can be further complicated by an IJ’s subjective conceptions of gender and violence. This suggests that the due process

requirements of the Fifth Amendment, which ensure a standardized means of adjudication as opposed to an arbitrary analysis subject to bias, are not adhered to in the EOIR process.39

                                                             
35 36

Ramji-Nogales et al., supra note 27, at 303.

Fletcher, supra note 14, at 125 (quoting Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir. 1984)).
37

Id. at 124-25 (quoting Real ID Act of 2005, Pub. L. No. 109-13, 101(a)(3)(B)(iii), 119 Stat. 302, 303).
38 38 39

8 U.S.C. § 1103 (2006). Ramji-Nogales et al., supra note 27, at 303. See id. 128

 

II. ASYLUM LAW AND PROCEDURE U.S. law sets forth specific classification schemes for categorizing citizens, non-citizens, and immigrants. Domestic asylum law provides a means for the U.S. to grant sanction to noncitizens who have experienced or are evading persecution. A. Immigration The INA categorizes non-citizens in the U.S. as either immigrants or non-immigrants.40 Non-immigrants are required to have a foreign residence which they have no intention of abandoning and must intend to stay in the U.S. only temporarily.41 As such, immigration proceedings are distinguishable from the asylum process. B. Asylum Asylum is defined as a “form of discretionary relief for humanitarian purposes to those, who for reasons recognized in the law, would suffer if they were ejected from the asylum country and forced to return home.”42 U.S. laws regulating asylum and withholding-of-removal find their origins in the 1951 United Nations Convention Relating to the Status of Refugees, as amended by the 1967 United Nations Protocol on Refugees.43 Both the 1951 Convention and the 1967 Protocol emphasize the non-refoulement standard as a core principle of refugee law,

                                                             
40 41 42

Scaperlanda, supra note 7, at 47. Id.

DIANE KIESEL, DOMESTIC VIOLENCE: LAW, POLICY, AND PRACTICE 1184 (Matthew Bender, LexisNexis) (2007).
43

Id. at 1187. 129

 

mandating that “no party shall return a person to a country where they will be persecuted.”44 Although the U.S. ratified the U.N. Protocol on Refugees and agreed to adhere to the international refugee protection standards in 1967, Congress did not formally implement the policies until the 1980 enactment of the Refugee Act.45 INA §§ 101(a)(42), 208, and 241(b)(3) are the most relevant statutory provisions addressing asylum and withholding of removal, which are the two forms of relief for refugees within U.S. borders addressed within the Refugee Act.46 To qualify for asylum one must demonstrate that she is a refugee. The INA defines a refugee to include: Any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to avail himself or herself of the protection of that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.47 Persons inside the U.S. or arriving at U.S. boarders may be eligible for asylum if they fall within the statutory definition of a refugee.48 Although the application for asylum is treated as an application for withholding of removal under INA § 241(b)(3), the two forms of relief have different implications for the recipient.49

                                                             
44

Stephen Knight, Asylum from Trafficking: A Failure of Protection. Immigration Briefings, July 2007.
45 46 47 48 49

KIESEL, supra note 42. Scaperlanda, supra note 7, at 118. Id. (quoting 8 U.S.C. § 1101(a)(42) (2006)). Id. (construing 8 U.S.C. § 1158(b) (2006)). Id. 130

 

While receipt of asylum allows non-citizens to stay in the U.S. and apply for a visa after one year, refugees who are granted withholding of removal receive less protection. This is because withholding of removal merely prevents the U.S. government from requiring the refugee to return to his or her country of persecution, and does little to put a non-citizen on the path to permanent residency.50 The Supreme Court has interpreted the standard for withholding to be “more likely than not,” or exceeding fifty percent, that the applicant’s removal from the U.S. would mean that “her life or freedom would be threatened on account of her race, religion, nationality, membership in a particular social group, or political opinion.”51 The standard for asylum is far lower, requiring only a demonstration of past prosecution or a “well founded fear” of future prosecution.52 Although the standard of proof for asylum is lower than withholding of removal, the grant of asylum is discretionary, whereas the grant of withholding is mandatory if the applicant can establish statutory eligibility.53 A non-citizen seeking a grant of asylum based on past prosecution must demonstrate: (1) an incident, or incidents, that rise to the level of prosecution; (2) that is “on account of” one of the statutorily protected grounds; and is committed by the government or forces the government is either “unable or unwilling” to control.54 Furthermore, “[t]he statutory phrase, ‘on account of,’ requires an asylum applicant to demonstrate a nexus between the persecution and one of the protected grounds.” 55 In Matter of
                                                             
50 51 52 53 54 55

Id. KIESEL, supra note 42, at 1187. Id. Scaperlanda, supra note 7 (distinguishing 8 U.S.C.§§ 208(b) and 1158(b) (2006)). Knight, supra note 44 (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir.2003)). Id. (citing INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992)). 131

 

S.E.G, the BIA held “that membership in a purported social group requires that the group have particular and well-defined boundaries, and that it possess a recognized level of social visibility.”56 The “particularity” condition requires that the proposed group be distinguishable within its society as a “discrete class of persons.” 57 Determination of this criterion requires an evaluation of “whether the proposed description is sufficiently ‘particular,’ or is ‘too amorphous.’”58 The specific criteria for gender-based asylum claims are unclear. In cases like Matter of S.A., Matter of Kasinga, and Matter of R.A., women from other countries have made successful gender-related claims rooted in different types of violence.59 In Matter of S.A., the BIA granted a young Moroccan woman asylum after the court found she presented credible evidence establishing that she “suffered past persecution and has a well-founded fear of future persecution at the hands of her father.”60 The BIA went on to note that the persecution was, “on account of her religious beliefs, which differ from her father’s orthodox Muslim views concerning the proper role of women in Moroccan society.”61 The BIA, in overruling the decision of the IJ denying relief, noted a family member’s testimony regarding the, “severity and frequency of the beatings suffered by the respondent and the futility of seeking

                                                             
56 57 58 59 60 61

Matter of S-E-G-, 24 I. & N. Dec. 579, 582 (BIA 2008). Id. at 584. Id. (quoting Davila-Mejia v. Mukasey, 2008 WL 2630085, *3 (8th Cir. 2008)). 8 U.S.C. § 1101(a)(42)(A) (2006). In re S-A-, 22 I. & N. Dec. 1328, 1328 (BIA 2000). Id. 132

 

governmental protection in such instances in light of societal religious mores.”62 The court also noted the prevalence of domestic violence in Morocco and the unavailability of legal remedies to women.63 In Matter of Kasinga, the BIA granted asylum to a women from the Tchamba-Kunsuntu Tribe in Togo who was fleeing female genital mutilation (FGM).64 The court held that a social group is cognizable when defined by gender in combination with other characteristics.65 The BIA first defined the standard of social groups seeking asylum in Matter of Acosta, requiring that the group share an “immutable characteristic” fundamental to its identity, including sex and ethnicity.66 Here, the court found that “young women of the Tchamba-Kunsuntu Tribe who have not had FGM, as practiced by that tribe, and who oppose the practice,” were members of a particular social group with a well-founded fear of persecution.67 In Matter of R.A., Rody Alvarado, a Guatemalan woman who was severely abused by her husband, was granted asylum in the U.S.68 Despite Ms. Alvarado’s multiple attempts to access government protection in her native country, the legal system in Guatemala continuously denied
                                                             
62 63 64 65 66

Id. at 1332-33. Id. at 1333. See In re Kasinga, 21 I. & N. Dec. 357, 377 (BIA 1996). See id.

Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), modified, Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987).
67 68

In re Kasinga, 21 I. & N. Dec. at 358.

Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S., CENTER FOR GENDER & REFUGEE STUDIES, http://cgrs.uchastings.edu/campaigns/alvarado.php (last visited Dec. 8, 2010). 133

 

her protection and refused to intervene in what they perceived as a domestic matter.69 In 1996, after fleeing to the U.S., Ms. Alvarado was granted asylum from an IJ.70 However, the

immigration service chose to appeal and the BIA reversed the IJ’s decision.71 Subsequently, numerous women were denied asylum claims where the cause of action stemmed from genderbased violence.72 In 2001, as a response to public outcry, Attorney General Janet Reno ordered the BIA to issue a new decision regarding Ms. Alvarado’s asylum claim that was in accordance with proposed DOJ regulations related to asylum claims based on gender.73 Despite support from Reno’s successor, Attorney General John Ashcroft, Ms. Alvarado’s claim was left unresolved. 74 The case remained in limbo until 2008, when the third Attorney General to handle Ms. Alvarado’s asylum claim, Michael Mukasey, ordered the BIA to review the claim to consider the relevant legal precedent that had accumulated over the twelve years since the case commenced.75 On December 10, 2009, Ms. Alvarado was finally granted asylum.76
                                                             
69 70 71 72 73 74

Id. Id. Id. Id. Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S., supra note 68.

Jessica E. Slavin, Attorney General Cancels Stay in Matter of R-A-, the Case of a Guatemalan Woman Seeking Asylum From Severe Domestic Violence, MARQ. UNIV. LAW SCH. FACULTY BLOG (Sept. 30, 2008), http://law.marquette.edu/facultyblog/2008/09/30/attorney-generalcancels-the-stay-in-matter-of-r-a-the-case-of-a-guatemalan-woman-seeking-asylum-from-severedomestic-violence/.
75 76

Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S., supra note 68. Id. 134

 

Although the court did not set out a definitive test for determining asylum claims based broadly on gender-based violence, or specifically on domestic violence, the case has been cited to as providing a “roadmap” for how female victims of domestic violence can establish a valid asylum claim based on membership to a particular social group.77 Despite the promise of this decision, there is currently no clear test for establishing asylum claims rooted in domestic violence and no evidence that the ruling in Matter of R.A. will extend beyond Ms. Alvarado’s case. Furthermore, Matter of R.A. is specific to domestic violence cases and does not provide recourse for other gender-based asylum claims. Although Matter of S.A., Matter of Kasinga, and Matter of R.A., have been recognized as victories for gender-based asylum petitions, they do not establish broad, enforceable categories for making successful asylum claims related to gender. Instead, they represent isolated instances of success in a system that does not provide guidelines for analyzing these types of claims. C. Torture Convention In 1994, the U.S. ratified the U.N. Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT).78 CAT requires that signatory states, “agree not to expel, to return (refouler) or to extradite a person to another state where there are substantial grounds for believing that she would be in danger of being tortured.”79

                                                             
77

See Karen Musalo, Toward Full Recognition of Domestic Violence as a Basis for Asylum, AM. CONST. SOC’Y FOR LAW AND POL’Y BLOG (Aug. 20, 2010), http://www.acslaw.org/acsblog/toward-full-recognition-of-domestic-violence-as-a-basis-forasylum.
78 79

KIESEL, supra note 42, at 1189. Id. 135

 

Although there are similarities between the relief provided by CAT and that afforded by the 1980 Refugee Act, the provisions and applicable standards of review are distinguishable. The relief provided by the ratification of CAT applies a different standard than the Refugee Act in that the torture need not have been inflicted based on a “specified protected ground.”80 Additionally, the two bodies of law have different requirements related to the role of the governments from which the asylum seekers have fled.81 While the Refugee Act requires that the U.S offer protection from persecution either directly imposed by the government or by forces the government is unable or unwilling to control, CAT requires that the asylum seeker fled a government that either inflicted the torture or acquiesced.82 Lastly, there are two different standards of proof set forth. The Refugee Convention has a “well-founded fear standard,” while CAT sets forth a standard that requires a “substantial grounds for believing that one would be in danger of torture.”83 Implementation of CAT is mandated by federal regulations.84 Applications for relief pursuant to CAT are the same form as those for asylum applications.85 However, these

applications will normally only be considered if asylum and withholding of removal are unavailable.86
                                                             
80 81 82 83 84 85 86

See id. See id. Id. KIESEL, supra note 42, at 1189. Scaperlanda, supra note 7, at 119. Id. Id. 136

 

III. DOMESTIC AND INTERNATIONAL LAW RECOGNIZE RENDER-BASED PERSECUTION Both domestic and international law recognize gender-based violence. Although the conception of gender-based violence is broader under international law than domestic law, both frameworks fail to adequately and systematically mandate relief for gender-based persecution. A. Domestic Concept of Gender-Based Violence Although domestic law in the U.S. has recognized some forms of gender-based violence as a viable basis for asylum claims, ‘gender’ itself does not qualify as a category of persecution warranting a grant of asylum.87 In 1995, the DOJ created guidelines for asylum officers in deciding gender-based asylum cases.88 The guidelines permit the grant of asylum for genderbased persecutions including rape, sexual violence, violation of fundamental beliefs, and publicly tolerated private acts of violence.89 However, the guidelines only list considerations and

suggestions; they do not include mandatory criteria for evaluation. Currently, no such criteria exist. Section 101(a)(42) of the INA does specifically protect individuals who flee persecution in other countries because of forced sterilization or forced abortion. Beyond these specific categories, the INA fails to offer official guidelines regarding other forms of gender-related

                                                             
87

“Possession of broadly based characteristics such as youth and gender will not by itself endow individuals with membership into a particular group.” Memorandum from Phyllis Coven, U.S Office of Int’l Affairs, Dep’t of Justice, Considerations for Asylum Officers Adjudicating Asylum Claims from Women (May 26, 1995) (quoting Gomez v. INS, 947 F.2d 660, 664 (2d Cir. 1991)).
88

Gender Guidelines, CTR. FOR GENDER & REFUGEE STUDIES, http://cgrs.uchastings.edu/ law/gender_guidelines.php (last visited Dec. 8, 2010).
89

Stop Violence Against Women, AMNESTY INT’L U.S.A., http://www.amnestyusa.org/ourwork/issues/women-s-rights (last visited Dec. 8, 2010). 137

 

violence.90 Rather, the current structure for evaluating asylum applications relies on an analysis of gender-related asylum claim that groups varying experiences into a broader category, which encompasses all asylum claims and subjects dissimilar experiences to the same standard of review. This standard, or lack thereof, is reiterated in the Department of State’s Gender

Guidelines for Overseas Refugee Processing, which provides, In evaluating whether the harm or feared harm constitutes persecution, the same factors and guidance that an Immigration Officer uses to assess the level of harm in any refugee case should be used in gender-related persecution cases as well. For instance, the fact that a practice is widespread or a cultural norm does not detract from a claim that the alleged acts are serious enough to be persecution. The determination of whether an act (or acts) rise(s) to the level of persecution must be made on a case-by case basis.91 It is not that gender-based asylum claims necessarily warrant a heightened standard of review by asylum officers. Rather, these types of claims necessitate formal criteria for evaluation that ensures gender-related cases are adjudicated systematically. B. International Concept of Gender-Based Violence The United Nation’s concept of gender-based violence, although broader than that specified by the U.S., is still narrow in its interpretation of what constitutes gender-based violence. In 1985, the U.N. recognized that, States, in the exercise of their sovereignty, were free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they lived may be considered as a ‘particular social group’ within the meaning of Article 1 A, paragraph 2, of the 1951 United Nations Convention relating to the Status of Refugees.92
                                                             
90 91 92

Gender Guidelines, supra note 88. Id.

U.N. High Comm’r for Refugees, Addendum to the Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees on the Work of its Thirty138

 

In 1993, in the Declaration for the Elimination of Violence against Women, the U.N. elaborated on its definition of gender-based violence to include, “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.”93 C. Problems with Domestic and International Frameworks Evaluating Gender-Based Persecution The domestic and international categorical schemes for recognizing gender-based persecutions are too narrow in their scope because they define gender in terms of biological sex, rather than the societal construction of gender, and fail to recognize persecution based on sexuality. The guidelines reinforce dichotomous gender schemes and individual acts of violence, thereby neglecting systematic forms of gender-based violence against individuals who defy stereotypes of gender and sexuality. Although groups, like homosexual men, have succeeded in asylum claims based on fear of prosecution as part of a particular social group, these successes are often analyzed as categorically distinct from gender-based violence.94 The under-inclusiveness in legal interpretations of gender-based violence extends beyond sexuality. Women who fail to adhere to societal gender norms are also not likely be included in
                                                                                                                                                                                                    

Sixth Session, Addendum to the Report of the United Nations High Commissioner for Refugees, ¶115(4)(k), U.N. Doc. A/40/12/Add.1 (Jan 10, 1986).
93

U.N. General Assembly, Declaration on the Elimination of Violence against Women, G.A. Res. 48/104, U.N. Doc. A/RES/48/104 (Dec. 30, 1993).
94

Jamie R. Edwards, Jr., Homosexuals and Immigration: Developments in the United States and Abroad, CTR. FOR IMMIGRATION STUDIES (last updated May 1999), http://www.cis.org/Immigration%2526Homosexuals-PolicyTowardHomosexuals. 139

 

the framework. The Matter of S.A., where the court recognized religious persecution as a viable basis for asylum, has been cited as an example of a successful gender-based asylum claim.95 The court granted asylum when, a woman with liberal Muslim beliefs established by credible evidence that she suffered past persecution and has a well-founded fear of future persecution at the hands of her father on account of her religious beliefs, which differ from her father’s orthodox Muslim views concerning the proper role of women in Moroccan society.96 The courts have acknowledged in their evaluation of asylum claims that persecution may include, “governmental measures that compel an individual to engage in conduct that is not physically painful or harmful but is abhorrent to that individual’s deepest beliefs.”97 However, precisely what rises to the level of “profoundly abhorrent” is something the courts have left undefined, noting that, "the concept of persecution does not encompass all treatment that our society regards as unfair, unjust or even unconstitutional.”98 Persecution based on sexuality and societal gender norms should be considered within a broader analysis of gender-based violence. The framework for assessing claims rooted in gender-based violence are simultaneously too narrow and too broad. Although the system allows for a narrow implementation of asylum policy related to gender-based violence, it is simultaneously broad in the sense that the lack of framework leads to a subjective review process. Because the system set in place does not provide a specific framework for making a claim, the determination of what constitutes an
                                                             
95

Gender-Related Asylum Fact Sheet, http://www.amnestyusa.org/women/pdf/asylum.pdf (last visited Dec. 6, 2010) (citing the Matter of S.A., 19 I&N Dec. 3433 (BIA 2000)).
96 97 98

Id. Coven, supra note 87 (citing Fatin v. INS, 12 F.3D 1233, 1242 (3rd Cir.1993)). Id. (quoting Fatin, 12 F.3D at 1240). 140

 

asylum-eligible category of gender-based violence is determined on a case-by-case basis. The system allows the adjudicator to define acceptable “asylum worthy” categories of gender-based violence for each individual claim, rather than implementing a consistent standard of review. Feminist scholars have suggested that some decision makers’ misunderstandings of gender and the relationship between gender, persecution and discrimination has resulted in

mischaracterizations of acts that should be considered gender-based violence within domestic refugee and asylum law.99 IV. THE VIOLENCE AGAINST WOMEN ACT AND THE VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT The Violence against Women Act (VAWA)100 and the Victims of Trafficking and Violence Protection Act (VTVPA)101 are two laws enacted by Congress to help eradicate genderbased violence both domestically and internationally. Although the legislation has specific provisions aimed at addressing non-citizen women affected by gender-based violence, the statutes fall short of fulfilling that goal. A. The Violence Against Women Act In 1994, Congress passed the Violence against Women Act, allocating 1.6 billion dollars in funding to enhance judicial and law enforcement services aimed at addressing violence against

                                                             
99

See Valerie Oosterveld, Gender, Persecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime against Humanity of Gender-Based Persecution , DUKE J. COMP. & I’NTL L. 49, 53 (2006).
100 101

Violence against Women Act, Pub. L. No. 103-322, 119 Stat. 2960 (2006).

Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, 114 Stat. 1464 (2000). 141

 

women.102 VAWA promised to both improve current services and create new services for women who have experienced domestic violence, dating violence, sexual assault and stalking. VAWA addresses some of the inequities inherent in U.S. immigration law as part of a larger goal of preventing violence against women. Title VII of VAWA specifically addressed issues

relevant to the protection of battered and trafficked immigrants.103 Provisions of VAWA allow women to self-petition for lawful permanent residence or to request a cancellation of removal proceeding if they have previously been granted a two-year Conditional Permanent Residence card.104 Both provisions require that the applicant be married to or recently divorced from their abuser.105 U.S. law requires that the spouse of a non-citizen petitioning for permanent residence be a U.S. Citizen or lawful permanent resident, and that the spouse initiates the petition with the USCIS and attends subsequent interviews with immigration authorities.106 This standard forces non-citizen women to be dependent on their spouse for citizenship status, thus perpetuating the dominant role of the abuser and reinforcing his power over the victim.107 Although the VAWA provisions attempt to address this dependency by allowing those who have experienced abuse to self-petition and apply for a temporary stay independent from their abusers, it does little to assist women who experience abuse and are unmarried, widowed, divorced for more than two years, or abused by a family member that is not
                                                             
102 103 104 105 106

Violence against Women Act, Pub. L. No. 103-322, 119 Stat. 2960 (2006). Id. Id. Id.

VAWA Laws for Abuse Victims, WOMENSLAW.ORG (Nov. 11, 2011), http://www.womenslaw.org/laws_state_type.php?id=10270&state_code=US#content-10405.
107

Id. 142

 

a spouse. Furthermore, it does nothing to address issues relevant to men who have experienced domestic violence. B. Victims of Trafficking and Violence Protection Act In 2000, Congress passed the Victims of Trafficking and Violence Protection Act, which included the VAWA and the creation of two new categories of nonimmigrant visas: T-Visas and U-Visas.108 These visas, unlike the VAWA provisions for self-petition and cancellation of removal, allow non-citizens to apply for visas through the USCIS regardless of their marital status.109 The law places the burden of proof on the applicant throughout the application process.110 The visas allow some non-citizen victims to obtain temporary legal status, automatic work eligibility in the U.S. for up to four years, the opportunity to apply for extensions under certain circumstances, and the prospect to apply for lawful permanent residency after three years.111 The visas also allow immediate family members to be included in the petition.112 In order to qualify for a U-Visa, applicants must demonstrate in their petition that: (1) they have
                                                             
108

Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, 114 Stat. 1464 (2000).
109 110 111

See id. See id.

“The U-Visa crimes are limited to rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, hostage situations, peonage, false imprisonment, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury or attempt, conspiracy, or solicitation to commit any of the above mentioned crimes.” U Visa for Immigrants who are the Victims of Crimes, U.S. IMMIGRATION SUPPORT, http://www.usimmigrationsupport.org/visa-u.html (last visited Dec. 10, 2010).
112

Id. 143

 

suffered "substantial physical or mental abuse" as the result of one of the specified forms of criminal activity; (2) they possess information concerning the criminal activity; (3) they can provide a certification from a federal, state, or local law enforcement official, prosecutor, judge, or authority that is investigating the criminal activity that the applicant is being, has been, or is likely to be helpful to the investigation or prosecution of the criminal activity; (4) the criminal activity “violated U.S. law; or occurred in the U.S. (including Indian country and military installations) or the territories and possessions of the U.S.”113 Similarly, T-Visas give temporary non-immigrant status to applicants who: (1) are victims of a “severe form of human trafficking;” (2) “are in the U.S., American Samoa, or a port-of-entry to the U.S. or American Samoa because of human trafficking;” (3) “would suffer extreme hardship if removed or forced to leave” and; (4) “have cooperated with or are excused from cooperating with reasonable requests from legal authorities.”114 Congress has authorized the issuance of 10,000 U-Visas and 5,000 T-Visas annually.115 Even though both visas allow for derivative T-Visa and U-Visa status for immediate family members, the number of authorized visas remains low. In 2009, the year in which the most Tvisas were granted, only 313 of the available visas were approved.116 In the same year, only

                                                             
113

U-Visa Laws for Crime Victims, WOMENSLAW.ORG, http://www.womenslaw.org/laws_state_type.php?id=10271&state_code=US&open_id=10842 (last visited Dec. 10, 2010).
114

State Law Overview, WOMENSLAW.ORG, http://www.womenslaw.org/laws_state_type.php?id=13636&state_code=US&open_id=13641#c ontent-13641 (last visited Dec 10, 2010).
115 116

Scaperlanda, supra note 7 at 119. Id. 144

 

5,825 U-Visas were approved.117 Although 5,000 T-Visas are available per year, only 2,000 have been issued as of January 2009, more than eight years after the enactment of VTVPA.118 There is a significant disparity in the number of T-Visas and U-Visas that are available and those that are actually granted, despite the demonstrated need. This discrepancy between the need for visas and the actual number of visas granted can be partially attributed to inadequate dissemination of information by government agencies. Trafficking victims are likely not aware that this relief exists. Even if they are aware of the relief, the application process outlined in Title VII of VAWA has many complex legal requirements. Although the statute does not obligate applicants to hire an attorney in order to successfully pursue a visa application, non-citizens seeking remedy under VAWA may find that legal counsel is necessary to understand and fulfill the requirements.119 Financial barriers could hinder some potential applicants who need legal counsel in their application process. Comprehension of the complex legal requirements necessary for a successful visa application can be further complicated if applicants lack advanced English language skills. If a non-citizen attempts to commence the process of self-petitioning, cancellation of removal, or visa application, they risk deportation. Although the provisions of VAWA aim to help non-citizens achieve lawful stay in the U.S., an applicant who is undocumented and approaches CIS or the BIA in the process of seeking relief could potentially alert government
                                                             
117 118

Id.

Ambassador Mark P. Lagon, Director, Office to Monitor and Combat Trafficking in Human Persons U.S. Dep’t of State, William V. O’Brien Lecture in Int’l Law and Morality at the Georgetown Univ.: Law and Morality of Human Trafficking (April 9, 2008), http://fora.tv/2008/04/09/Mark_P_Lagon_Law_and_Morality_of_Human_Trafficking.
119

See Victims of Trafficking and Violence Protection Act, Pub. L. No. 106-386, 114 Stat. 1464 (2000). 145

 

authorities to their illegal status. If their application for relief under VAWA is denied, the applicant and their dependents may face deportation. The requirement that the applicant must be willing to fully cooperate with law enforcement demonstrates conflicting goals in the implementation of T-Visas and U-Visas. The success of a visa application is predicated on the applicant’s ability and willingness to cooperate with law enforcement, even if that cooperation is potentially harmful to the applicant. In order to qualify for a U-Visa, for example, the applicants must include in their petition, “information on how the victim can assist government officials in learning more about the crime including investigation and/or prosecution of the individual(s) that committed the crime.”120 If non-citizen applicants do not possess information relevant to the crime committed against them or cannot further the investigation of the individual accused of committing the crime, then the applicant will not meet the eligibility requirements necessary to attain a visa. Furthermore, if the applicant is unable or unwilling to help the government in investigating and adjudicating the crime, their visa application can be denied. The standard set forth makes the survivor of a crime responsible for bringing their perpetrator to justice. By cooperating with authorities, the applicant is required to relive the trauma of her experience, participate in a time consuming legal process, and possibly face her abuser if required to testify in court. The applicant must comply with law enforcement even if that compliance is in opposition with VAWA’s goals of bettering the situation of women who experience violence. The mandatory compliance provision of the visas furnishes law enforcement officials with witnesses who are obligated to help in the prosecution of those accused of crimes. Although this requirement may further the goals of the criminal justice system by punishing those convicted of crime, forcing survivors of crime to participate in
                                                             
120

WOMENSLAW.ORG, supra note 114. 146

 

that process is detrimental to the goals of VAWA. VAWA was created as a remedy for women who have experienced violence, and that legislative objective is compromised by visa requirements that predicate government protection on victims’ willingness and ability participate in the prosecution of their aggressors. V. RECOMMENDATIONS AND CONCLUSION The fundamental purpose of U.S. Refugee Law is, “to provide surrogate international protection when there is a fundamental breakdown in state protection resulting in serious human rights violations tied to civil and political status.”121 The U.S. government fails to meet this standard. Claims for asylum in the U.S. that are rooted in allegations of gender-based violence face both structural and procedural barriers. U.S. laws apply vague standards to the statutes

regulating asylum law. Furthermore, the procedural construction of the immigration courts under the DHS is flawed because there is no set standard of review for asylum claims. The ambiguity of the adjudication of asylum claims has been exacerbated under post-9/11 legislation. In particular, the implementation of Real ID gives far too much discretion to IJs. This further obscures standards of asylum review by allowing IJs more subjectivity when determining the validity of asylum claims absent a more definitive standard of review. In addition, the legislative restructuring of the EOIR under DHS after 9/11 undermined the authority of the judicial branch. The definition of gender-based persecution should be clearly defined within statutory framework. The formal adoption of guidelines for asylum officers in deciding gender-based asylum cases would provide standardized criteria for evaluation, ensuring the systematic
                                                             
121

Documents and Information on Rody Alvarado’s Claim for Asylum in the U.S., supra note 68. 147

 

adjudication of gender-based asylum claims. By allowing asylum claims predicated on genderbased persecutions including rape, sexual violence, violation of fundamental beliefs, and publicly tolerated private acts of violence, the proposed gender-related guidelines clearly define genderbased violence.122 However, the mandatory criteria for evaluation should expand beyond these proposed guidelines. Although broader than the proposed U.S. guidelines, the U.N. definition still falls short of sufficiently encompassing all forms of gender-based violence and providing adequate protection to those in need of sanctuary. The U.N. definition of gender-based violence should be modified and adopted into U.S. law. Protection for gender-based violence should not be limited to a definition of gender that relies on biological sex, ignoring the societal construction of gender and failing to recognize persecution based on sexuality. The U.N. limits its definition to ‘women,’ reinforcing dichotomous gender schemes. The U.S. should adopt a more expansive version of the U.N. definition of gender-based violence that recognizes systematic forms of gender-based violence against individuals who defy stereotypes of gender and sexuality. This would include women who fail to adhere to societal gender norms. Formal criteria and guidelines for evaluation would ensure that gender-based asylum claims are adjudicated systematically, reducing the discretion given to IJs. The current deficit of a systematic framework for review leads to a subjective review process. Because the system set in place does not provide specific criteria for accessing gender-based asylum claims, IJs are permitted to access gender-related asylum claims on a subjective basis. An individual IJ’s personal biases regarding gender-based violence have greater potential to affect the outcome of a

                                                             
122

Stop Violence Against Women, supra note 89. 148

 

gender-based asylum claim under the current statutory framework than it would with the implementation of a systematic framework for review. Asylum law would benefit from a restructuring that delegates to the federal courts the sole authority to hear asylum claims. The expansion of executive authority in the adjudication of asylum claims after 9/11 is unconstitutional because the creation of DHS undermined the separation of powers. Real ID has restricted the authority of the judiciary by giving great deference to the executive branch in making decisions related to asylum claims. The dissolution of EOIR and the deferral of asylum claims to federal courts would ensure a meaningful separation of powers by allowing the judiciary to interpret the laws set forth by the INS.

149

 

Reflections on Justice in the Former Yugoslavia By Jennifer Trahan* With the arrest this past summer of Goran Hadžić, following that of Ratko Mladić (and Radovan Karadzić before him), all the indictees of the International Criminal Tribunal for the former Yugoslavia have been apprehended. However, the arrests took years to accomplish, and this author’s trip to the region revealed that it is still not easy to prosecute the perpetrators of atrocities committed during the wars in the former Yugoslavia. The European Union still needs to play a key leadership role to ensure that justice is done. Achieving justice is not simple, in part, because where there are mass atrocities, there are generally massive numbers of perpetrators. The U.N. has decided it is crucial to prosecute (and it is) those most responsible for the crimes. To accomplish this, the U.N. Security Council in 1993 created the Yugoslav Tribunal, a sophisticated, extremely credible tribunal, sitting in The Hague, Netherlands. Yet, such trials may seem very remote to the victims in the former

Yugoslavia. They likely will not get to travel to The Hague to watch trials, and may care much more about prosecuting their neighbors for crimes committed against family members than prosecuting the “masterminds” of the crimes.

                                                             

* Jennifer Trahan is Assistant Clinical Professor of Global Affairs, New York UniversityS.C.P.S. She is also the author of Genocide, War Crimes & Crimes Against Humanity: A Topical Digest of the Case Law of the International Criminal Tribunal for the Former Yugoslavia (Human Rights Watch 2006). These reflections are based on the author's recent field intensive that she led to The Hague, Bosnia, and Serbia, as part of an N.Y.U. Center for Global Affairs course on Justice in the Former Yugoslavia.
 

150

 

How does one prosecute thousands of people? The truth is, we do not have an adequate solution, yet. Trials can be complicated and time-consuming, and there probably will never be prosecutions of all of those who should be prosecuted. In the former Yugoslavia, there is a multi-tiered approach to justice. The top perpetrators are being prosecuted in The Hague. The next level of crimes is being prosecuted in specialized domestic war crimes chambers in the countries of the former Yugoslavia, such as the Sarajevo and the Belgrade War Crimes Chambers (which this author recently visited). Some of these cases are referrals from the Yugoslav Tribunal. Prosecutions of lower level crimes are occurring, for instance, in local domestic courts in Bosnia-Herzegovina. The reality, however, is more complex. For instance, in theory, the Belgrade War Crimes Chamber will prosecute mid-level crimes up to the level of the ICTY’s prosecutions of top level perpetrators. However, it is unclear if this will happen. With the prosecutors of the Belgrade War Crimes Chamber not pursuing charges of command responsibility (responsibility commanders have to prevent or punish crimes by their subordinates), even though it is recognized as customary international law, it is likely that there will be an impunity gap between the lower level prosecutions and those at the Yugoslav Tribunal. Why is it so important to prosecute mass crimes? One reason is to avoid denial, which has been and continues to be a problem in the former Yugoslavia. For instance, political leadership of the Serb entity within Bosnia-Herzegovina, Republika Srpska, as well as the political leadership within Serbia, is prone to vitriolic statements and half-denials of crimes. Yet, this appears to be some progress because more often than not, there are no longer full denials that atrocities occurred.

151

 

Why are half-denials harmful? Countries living in denial cannot come to terms with the past. That may sound trite, but it has some real truth to it. Can the people really understand the role of their former leaders, military, and police regarding crimes when the current leaders tell them they are turning over to the Yugoslav Tribunal former Republika Srpska General Ratko Mladić, and now also Goran Hadžić, primarily to gain E.U. accession and not because, for instance, they are implicated in some of the worst atrocities committed during the wars? Then there is the refrain sometimes heard that justice in the former Yugoslavia has somehow been one-sided. Far from it. The Serbs tend to argue that the Yugoslav Tribunal is anti-Serb. Indeed, the leadership in Republika Srpska recently threatened a referendum to oppose prosecutions at the Sarajevo War Crimes Chamber on unfounded allegations of ethnic bias. It is important to note that crimes were committed by all sides during the conflict in the former Yugoslavia. But the truth is also that more crimes were committed by the Serbs than by any other ethnic group – so one should see more cases against Serb perpetrators. We are talking about the Srebrenica genocide, where an estimated 8,000 Bosnian Muslim men and boys were killed over a few days in July 1995 (with Dutch U.N. peacekeepers standing nearby); the sniping and shelling of civilians in Sarajevo, where an estimated 10,000 civilians died (including an estimated 1,500 children); the creation of so-called “camps” such as in the Prijedor region of the self-proclaimed Republika Srpska, where killing, mutilation, torture and rape were systematically committed; as well as general ethnic cleansing campaigns to expel non-Serbs (Bosnian Muslims and Croats) from areas the Bosnian Serbs took over in an attempt to create an ethnically pure state. Until the public in Republika Srpska and Serbia is willing to recognize not only that these crimes occurred, but that their former leadership, as well as members of the military,

152

 

paramilitary, and police helped perpetrate such crimes, there will most likely continue to be accusations of partiality levelled against the tribunal. The recent initiative to create a regional truth commission, known as RECOM, has potential to help create a shared narrative of what happened—something still very much needed so that those of different ethnicities stop seeing the war through the lens of different “truths.” One can lament that the Yugoslav Tribunal only created its “outreach” (public relations) function six years after the tribunal’s creation. Indeed, outreach—first envisioned by American Judge Gabrielle Kirk Macdonald, originally funded by NGO contributions, and still not part of the tribunal’s regular budget—still seems to be the orphaned step-child of that Tribunal. But there probably is only so much that outreach can achieve. This is not a situation where key perpetrators have been fully “vanquished,” as was the case when the International Military Tribunal at Nuremberg conducted prosecutions. When that is the case, “outreach” is less

difficult. Similarly, when the first prosecutor of the Special Court for Sierra Leone, American David M. Crane, was conducting outreach through a series of “town hall” meetings around Sierra Leone, there was no active denial of what he was saying. The Rwanda Tribunal has had difficulties similar to the Yugoslav Tribunal, with outreach that was created late in the process, and generally plagued by a contentious relationship with the Government of Rwanda. Journalists also bear some responsibility for the fact that the public in the former Yugoslavia still does not understand that justice is being done vis-à-vis all sides. Public surveys of the region show little acceptance of the work of the Yugoslav Tribunal in most countries. Why did Croatian journalists focus mainly on the conviction of former Croatian General Gotovina, but not monitor the trial proceeding so they could properly communicate to the people in Croatia the evidence and findings? Why do they not cover trials where Croats are victims, so

153

 

that the public can see that justice is being done on their behalf, and not only against those of Croat nationality? At least some journalists from the region, such as Mirko Klarin of Sense News and Merdijana Sadović, co-founder of the Center for Justice and Reconciliation and reporter for the Institute for War and Peace Reporting, are conducting admirable coverage of the daily work of the Yugoslav Tribunal, as well as training journalists to cover war crime trials in a more unbiased fashion. Above all, it is important to recognize that we are at a crucial point in time to combat some of this denial and support the legitimate prosecution efforts occurring. This is also a critical time to pressure the leadership of the Serb republic within Bosnia-Herzegovina to act responsibly and to stop threatening the State of Bosnia-Herzegovina and its institutions. What is this leverage? It is the “carrot and stick” of progress towards E.U. membership. The E.U. holds a tremendous playing card to endorse good behavior in the region, and it should use it. With countries in the area suffering economically (according to the CIA World Factbook, unemployment in Bosnia-Herzegovina is a staggering 43.1%), countries are desperate to join the E.U. Croatia leads the pack, with Serbia—recently granted E.U. “candidate” status—behind it. The E.U. should not squander the opportunity it has to pressure countries in the region to deal credibly with their past, and work together towards a shared future.

154

 

Notes From Kampala: The First Note in a Series of Reflections and First Hand Accounts From a Law Student’s Summer in Uganda By Reta Raymond I’m a second-year law student from Syracuse University and was fortunate enough to have spent the summer in Kampala, Uganda to work in the area of human rights law. I worked for a small Ugandan law firm that works on a variety of public interest constitutional matters, human rights issues, and also represents the three-time presidential candidate, Dr. Kizza Besigye. In addition, I worked for another human rights organization and volunteered at an orphanage. While in Kampala I lived at a guesthouse adjacent to the orphanage where I volunteered. The orphanage generates desperately needed income, as the government does not support organizations caring for the nearly two million orphans in Uganda. I came to Uganda at a turbulent time. Two weeks earlier the police responded to the month-long protests with live ammunition and tear gas. Unfortunately, these events were largely unreported or downplayed by the international media. I decided to keep a journal of my experiences in Uganda, detailing the issues that were plaguing Ugandan society. The most striking of these issues include high rates of child abandonment, structural problems in the law, pervasive corruption, state-condoned police brutality, separation of power issues, and executive power breaches. This series of articles will serve to highlight some of these issues, raise awareness, and give a voice to the Ugandans who are fighting so hard for change. The capital city of Kampala is constantly bustling, from the claustrophobic markets to the ever-present traffic jams. The old second-hand cars and stripped-down Volkswagen Vanagon taxi buses spew black exhaust, which combine with the burning trash to pollute the air to a near asphyxiating degree. Due to the electric company’s mismanagement, the city often loses power

155

 

for hours at a time, even in the center of the city. For a city that only has twelve hours of daylight but many residents who travel by motorcycle, it can be rather dangerous speeding through the city without streetlights. However, Kampala is generally safe and there is a strong presence of police in full military attire who carry assault rifles. The police presence is particularly heavy in the center of the city, as there are dozens in the Constitutional Square, although they are usually sleeping in the grass. But where the police fail, the lynch mobs usually pick up the slack. For example, one morning around 7:30 a.m. a colleague arrived at the office and told us to look out the window. There was a mob after a man who had tried to steal a car. The mob of fifteen to twenty people had partially stripped the thief of his clothing, which they do to humiliate the man, and were beating him with their fists and stones. The man lay in a pool of blood in the gutter while the group watched for movement. He feigned death, his only hope for survival. His lack of movement mostly satisfied the mob, but they gave him intermittent blows regardless. Our office is in the center of the city only two blocks from the Constitutional Square, but it took forty-five minutes for an ambulance to arrive. Once the ambulance pulled up, the driver talked to some of the mob participants but decided to drive away without the man. Some of the onlookers followed the ambulance and demanded it return for the man. Shortly thereafter, a police truck showed up with four or five men with assault rifles, who restrained the mob and eventually ordered the ambulance to take the man away. By that time, the man had been lying in a pool of blood for an hour. My colleagues and I watched as the ambulance was sent in the direction of Mulago Hospital, the government-run hospital, and the truck of officers went in a different direction. If the man survived the incident, he would probably not face any criminal charges.

156

 

In the aftermath, some of my colleagues joked about how “gangster” they are in Uganda and voiced their opinions on the mob mentality. It seemed clear that mob violence increases when there are larger societal problems; it is really a result of displaced anger. There is no rationale for killing a would-be car thief otherwise. Many Ugandans feel that President Yoweri Museveni, who has been in power since 1986, lacks legitimacy. In April, the opposition parties led a peaceful “Walk-to-Work” campaign to protest high commodity and fuel prices. The military responded with liberal use of tear gas, rubber bullets, and live ammunition, killing at least ten civilians including two children. The government has yet to investigate these deaths. Then in July, Kampala’s taxi drivers, business owners, students, and teachers all went on strike. Uganda seems to face insurmountable problems, but the government’s current responses to these problems have been insufficient and Ugandans are clearly not going to stand for much more.

157

 

Notes From Kampala: Problems in the Judiciary By Reta Raymond My internship in Uganda was with a law firm that represents one of Uganda’s biggest celebrities, the President of the Forum for Democratic Change, Dr. Kizza Besigye. Dr. Besigye lost the last three presidential elections to President Yoweri Museveni, who has been Uganda’s president since 1986. In 2006, Dr. Besigye challenged the outcome of the presidential election in the court system. While the court found evidence of ballot rigging and other fraudulent practices, it held that it was not so great as to affect the overall outcome. After his February 2011 defeat, Dr. Besigye proclaimed that even though there was evidence of fraud, challenging the election in the court system would be futile. Instead, he sought to inspire an East African “Arab Spring.” Dr. Besigye became the voice of the opposition group, the “Activists for Change,” which organized the “Walk to Work” campaign to protest commodity prices in 2011. The peaceful Walk to Work protesters met with a strong police opposition when they began in April and May of 2011. The military and riot police used live ammunition, rubber bullets, tear gas, and batons against the protestors. The government forces killed at least 10 civilians, including two children under the ages of five. investigated. Dr. Besigye was arrested numerous times last April and May during the Walk to Work protests. In one confrontation with the police, Dr. Besigye was shot in the hand. Weeks later, Dr. Besigye was put on unofficial house arrest for nearly ten days. When Dr. Besigye was finally allowed to travel to his office, protestors rallied around his vehicle while he was sitting in a traffic jam. Seeing the mob around the doctor’s car, a plain-clothes policeman approached the These deaths have never been

158

 

vehicle and proceeded to bash in the passenger window and use pepper spray on Dr. Besigye at close range. Dr. Besgiye was temporarily blinded by the pepper spray and spent several weeks in Nairobi and the United States for medical treatment. The police contend that Dr. Besigye was carrying a weapon in his car, but media footage clearly shows that he was unarmed. The first court hearing I attended in Uganda was in regards to the charges against Dr. Besigye on inciting violence, as a result of his arrest during the protests. The hearing, held in the tiny, one room courthouse in Kasangati, a pastoral suburb of Kampala, was filled to the brim with reporters, photographers, cameramen, and curious townspeople. Two prosecution attorneys and two defense attorneys could barely fit on the bench, and the accused squeezed onto one bench by the wall. The atmosphere in the courtroom prior to the hearing was chaotic, with flashing cameras and excited spectators and reporters weighing in on the potential outcome. Outside the courthouse, two dozen police officers in full riot gear wandered through the tall grass and casually joked with one another while leaning on their Kalashnikovs. After a brief presentation, the prosecutor lamented that they couldn’t find their witnesses or that they could not be present for some reason, and, months later, the charges were eventually dropped. After our client’s matter was heard, five other young men were charged from arrests during the same protest. As the judge spoke to them, they wore blank looks on their faces. The judge asked if they understood and some shook their heads no, so they were given a translation by the clerk. One of the defendants was not present. A member of the audience told me that might have been because court documents are not translated into local languages. The man may have gotten his trial notice, but perhaps he had not been able to understand it. The lack of an official translator in the judicial system is incredibly problematic in Uganda. While the official language is English, it is not the first language of most native

159

 

Ugandans. The most common language spoken in Kampala is Luganda, as it is the language of that region’s tribe. However, there are nearly fifty tribal languages spoken in Uganda. Because there is no official translation system, the court calls for one of the court staff to translate when an accused or a witness can’t speak English. A translator can be anyone who speaks the language, so this can be a guard or a clerk. Even prosecutors have been known to translate. The right of the accused to a competent translator to explain the charges is a staple of international human rights law. When anyone is able to translate, many issues can arise. For example there is no quality control: the “translator” may insert their own perspectives, or they may choose not to translate everything stated. Another issue I noticed at this and at other trials was that there was no jury. It was particularly odd to not see a jury box at the more formal High Courts in Kampala, which more closely resemble Western courts. The Ugandan judicial system is modeled on the British judicial system and British case law is even binding on the Ugandan courts, so I wondered why that element was not adopted. I can only speculate, but perhaps the concern was to deter corruption. In Uganda, corruption is a huge issue. Uganda even has an Anti-Corruption Court to decide corruption cases. Jurors could easily be paid for their vote, especially when so much of the population lives in poverty and bribes are widely used in daily life. Also, the consequences for a juror taking a bribe might not be that severe, whereas a judge could lose his job if he was caught. However, it could be easier to pay one judge instead of convincing twelve jurors. Observing trials in Uganda made me question the American legal system. Everyone bowed before a judge before they entered a courtroom. Attorneys spoke softly and slowly in front of a judge, as a form of respect and also to allow him to take down the proceedings by

160

 

hand. Opposing parties refer to each other as “learned counsel.” I couldn’t help but wonder if Americans are less respectful of the legal system, generally. Maybe I’m wrong, but certainly it is a little embarrassing that American attorneys are not more respectful of judges and each other. As for the lack of a jury, it is an interesting exercise to question why it was so appalling to me. Perhaps my opinion would be different if I was a Ugandan, where corruption is rampant and perhaps the jurors could be easily bribed. Or maybe I am just not confident that a decision by one judge, in any country, would always be a more rational decision than a consensus by a decision by a jury of peers.

161

 

Notes from Kampala: Corruption By Reta Raymond I quickly learned that bribes get things done in Uganda. Usually poorly done, but things are accomplished nonetheless. One friend told me that the roads are in such disrepair because once everyone has had their piece of the pie, there is very little money to buy the materials and perform the actual construction. While corruption is wrong, how tightly would an American hold to the corruption is wrong position if they were immersed in Uganda’s living conditions? Often in Uganda,

international families seeking to adopt Ugandan children sit on court dockets for unexplained amounts of time. When these international families’ attorneys ask the adoptees for a sum for clerks’ fees, do the adoptees ensure that the fees are legitimate, or are they simply pleased that they have suddenly received a court date? In my case, my suitcase was too full at the airline checkout counter leaving Uganda. I had gotten very little sleep the night before, and offloading some of my belongings into a box to be shipped out and then re-entering the line was the last thing I wanted to do. I pleaded with the clerk, “Can I just pay you for the extra kilo?” She politely said, “Of course I want to help you. How much do you have?” I told her I only had twenty thousand shillings left, about ten bucks. “It would be better if you had fifty thousand,” she responded. The clerk then smiled and told me to put the money inside my ticket envelope. I realized she was extending an invitation to bribe her. What should I have done? Even if I was caught trying to bribe her, I probably wouldn’t be arrested. But it felt wrong to perpetuate this problem, to accept that this was a way of doing business. I curtly told her “no, thanks” and headed for the re-packing area.

162

 

The Wall Street Journal and the Heritage Foundation’s 2012 Index of Economic Freedom ranked Uganda number 78 out of 179 countries.1 The Index stated that, “Widespread corruption undermines the government’s capacity to provide basic public services efficiently.”2 Uganda attempts to address corruption through their Anti-Corruption Division of its High Court, which is their court of general jurisdiction. The Anti Corruption Coalition of Uganda (“ACCU”) also works to combat corruption through research, advocacy, and by facilitating the flow of information to civil society through its members to address the issue and solutions. For example, in its recent newsletter, the ACCU questioned whether school fees are excessive and, in fact, corrupt. The ACCU looked at a sample list of required items for a student to contribute each term, which “include[d] physical items like . . . a ream of papers, a big packet of washing soap, five bars of soap, five rolls of toilet paper, five tablets of bathing soap, floor polish, mineral water, a broom, a bag of cement, etc.”3 The ACCU then called on readers who may be “parents and teachers [to] reflect on the life they went through while at school and demand an explanation and accountability on how the items they buy for their children are used.”4 The ACCU’s article illustrates how pervasive corruption appears to be in Uganda, as even children may carry excessive cleaning supplies as a bribe for their headmaster on the first day of school.
                                                             
1

HERITAGE FOUNDATION, 2012 INDEX OF ECONOMIC FREEDOM: UGANDA 421-422 (2012), available at http://www.heritage.org/index/pdf/2012/countries/uganda.pdf.
2 3

Id.

Are Schools to Blame for the Extravagant Life Styles and Corruption? ANTI CORRUPTION COALITION UGANDA, http://www.accu.or.ug/index.php?option =com_content&view=article&id=378:are-schools-to-blame-for-the-extravagant-life-styles-andcorruption&catid=12:on-the-spot&Itemid=13 (last visited April 1, 2012).
4

Id. 163

 

Given the extent of the corrupt practices in Uganda, ten dollars to an airline clerk seems fairly nominal, but what is problematic is how casually the offer was extended. Without a missing a beat, the clerk didn’t hesitate to invite me to bribe her. We were really speaking two different languages. I meant, “May I pay the airline extra?” However, she heard, “Can I pay you personally?” Next time I’ll be more specific. Also, while I was really just paying for a convenience, Ugandans are faced with paying extra for bribes on necessary goods or services, such as school fees. This fact makes the gap between the rich and poor wider, and unfairly targets the poor, keeping them in a state of perpetual poverty. We can only hope that the work of the Anti-Corruption Court and the ACCU is able to combat corruption to help Ugandans get out of this cycle of poverty.

164

 

Notes from Kampala: Pearl of Africa  By Reta Raymond    This  note  series  has  become  awfully  dark,  which  doesn’t  accurately  reflect  my 

experience in Uganda.  Winston Churchill called Uganda the “Pearl of Africa,” and I couldn’t  agree  more.    There  is  the  Nile,  the  lush  jungles,  and  most  importantly  the  rich,  warm  culture.    When I was descending upon Entebbe, Uganda, it was around two in the morning.  I 

looked down on the small city and it looked like a display of fireworks on a dark sky.  There  is no grid system, so the lights on the ground were clusters of small lights.  It was beautiful.     I had arranged to be picked up by the people from the orphanage whose guesthouse 

I  was  going  to  stay  at,  but  I  was  a  little  nervous  because  I  hadn’t  received  much  of  a  confirmation email.  It was also the middle of the night, and I was 8,000 miles away from  home.    However,  by  the  time  I  left  my  connection  in  Istanbul,  I  had  met  a  handful  of  Ugandans who gave me their phone numbers, some of whom even knew either the law firm  where  I  was  going  to  intern  or  the  orphanage  whose  guesthouse  I  was  staying  at,  Sanyu  Babies Home.  It was clear that the warmth of the Ugandan culture has no boundaries.     Fortunately, Ronnie, Alice, and baby Elijah met me at the airport; they were a very 

sweet, young family who worked and lived on the Sanyu Babies Home compound. Sanyu is  the  oldest  orphanage  in  Kampala,  housing  around  fifty  children  under  the  age  of  four.  Sanyu operates a guesthouse next door to where the babies live to generate income.     Sanyu  was  an  ideal  place  to  stay.    Not  only  was  my  accommodation  price  a  direct 

donation to the orphanage next door, if I was free for the weekend, or wanted a break from  my work, I could go next door and play with the kids!  I lived with some really interesting  165

 

people  at  Sanyu,  as  most  people  came  to  the  guesthouse  either  to  volunteer  at  the  orphanage or to support the orphanage by staying at the guesthouse. Many of the residents  worked on  projects outside of  Sanyu,  so we  swapped  ideas  and  visited  other orphanages  together.     Sanyu was also very safe, with high fences encompassing the compound, a ten‐foot 

solid metal gate, and guards who patrolled with bows and arrows at night. The guards used  bows  and arrows  because  it  would deter potential thieves, because at night they couldn’t  tell  where the  arrow  came from.  The  guesthouse  could accommodate  around  fifteen,  but  the  recent  “Walk  to  Work”  protests  scared  away  many  international  volunteers.    These  protests were to contest high commodity and fuel prices and were met by the police with  live ammunition, tear gas, and rubber bullets. At least ten civilians were killed, including at  least one toddler and one pregnant woman who was shot in the stomach. I lived with only  one or two other American girls for the first month until the situation stabilized.      During  the  first  week  I  was  in  Uganda  and  before  starting  work,  I  walked  around 

Kampala, and I felt very, very far from home.  People drove on the left side of the street, had  no  sympathy  for  pedestrians,  and  ignored  the  few  stoplights.    Also,  I  knew  that  I  would  stick out in Uganda—I’m a blond, white girl—but I wasn’t expecting to be called out on the  street for it. People would call out “mzungu” or “mzungu, how are you?” I had no idea how  to react. “Mzungu” literally translates as “white person,” but it is used to describe all non‐ Africans: Even my half‐South African friend and a Pakistani woman were called “mzungu.”  Therefore, it was more of a recognition that we were western rather then a connection to  our skin color.  So I followed other travelers’ leads and just ignored the comments at first. 

166

 

 

After a few weeks passed, I learned how to, as one woman articulated, “navigate my 

privilege.”  I learned some Lugandan, like how to say, “Hi, black person” and people would  just  laugh  with  me.    I’d  speak  to  my motorcycle  taxi  drivers  in  Lugandan,  rebutting  their  outrageous mzungu‐fare quotes with “banange ssebo!”  That translates to “that’s crazy, sir,”  which always made the groups of drivers erupt with laughter.  I took a nod from the local  culture and made people laugh right away, and any walls came down pretty quickly.     However,  a  couple  months  into  my  trip,  I  told  my  Ugandan  friend  about  how  I 

longed to blend in.  She explained that Uganda is a small country and everyone just talks to  each  other.    She  thought  that  America  was  so  big  and  that  made  people  scared  of  each  other.  I partially agreed, but told her that in America if someone yells “white girl” at me, I  wouldn’t exactly think they were trying to start a friendly conversation.    Another weekend I went to a village where a friend I’d met through the guesthouse 

grew  up.    The  village  was  called  Kito  (“Cheetoh”).  We  drove  for  an  hour  on  the  highway,  and then for an hour through sugar cane and tea plantations, nearly straight up a mountain.   While the village couldn’t have been home to more than a 100 people, with probably fifty  dollars between them, it was full of so much life and love.  It was nestled into a beautifully  lush valley at a high elevation, and the view was breathtaking.     The friend from Kito was a teacher at a private school in Kampala, and she traveled 

back to Kito periodically to help the local teachers and work with the children.  When we  arrived,  the  kids  surrounded  the  car  and  we  greeted  them  with  bags  of  candies.  We  also  brought  a  big  surprise—a  birthday  cake—as  it  was  my  friend’s  birthday.    These  children  very rarely get sweets and had probably never had birthday cake.  We toured the two‐room  schoolhouse and then gathered in the church for singing, dancing, and CAKE!  We sliced up  167

 

the  cake  into  tiny  little  pieces  and  handed  out  the  pieces  to  the  kids  in  the  pews  of  the  church.  Their little eyes sparkled and they laughed giddily.  At the end of the cake‐fest, the  children formed a line and presented my friend with a gift and hug for her birthday.  They  had  all  woven  soccer  balls,  dolls,  and  jump  ropes  out  of  banana  leaf  fibers  with  amazing  skill.  It was one of those day trips that I will never forget.    Being  immersed  in  a  small  country  taught  me  a  lot,  as  I’ve  lived  primarily  in  big 

cities for the past ten years.  In Uganda, strangers talk to each other on the street, and they  aren’t afraid to have a personal conversation at work or debate politics.  Frankly, I’ve never  been in an office, much less a law office, that laughs so much.  It makes me wonder why we  are so serious here in the United States.    

168

 

Notes from Kampala: Food as a Vehicle for Culture By Reta Raymond After  writing  about some of  the brighter aspects  about Ugandan culture in  my last  note,  I  want  to  continue  this  trend  for  one  more  week  and  share  my  notes  on  a  favorite  topic—Ugandan food! My mother is a chef, so food has always been an important part of my life. I thought I’d write this article about the different foods that I encountered in Uganda through birthday parties, good-bye feasts, and daily lunches at the law firm. Generally, Ugandan cuisine is very

carbohydrate heavy and a little bland, but I found my favorites quickly! The one thing I learned from my mother is that you must eat other people’s cooking. In Uganda, I always felt as though I was under the microscope around mealtimes. Joel, the guesthouse manager, would cook dinners for us, which ranged from pancakes (our favorite) to cinnamon flavored meat stew (I would eat rice). When he found that someone wasn’t eating his food, he’d be angry and would rebut our protests of certain foods with, “I know what Muzungus like to eat!” So he would serve what he thought was the “Muzungu” (white people) version of Ugandan food. For example, Ugandans will typically eat rice, posho (a slightly sweet

porridge/mashed potatoes equivalent), matoke (steamed mashed plantains), beans, and meat stew for one meal. Joel would translate this into rice, mashed potatoes, French fries, pasta, and fried chicken. There were always at least three different types of carbohydrates at every meal. At the law firm, the whole firm would eat at the same time. We would all line up outside the kitchen down the hall and serve up traditional Ugandan food that was made by a former employee and brought in. It was pretty much the same meal, every day. Rice, beans, matoke, posho, beans, maybe some steamed bitter greens and meat stew. It was quite well made, and I

169

 

always ate in for the social aspects of it, as well as to be polite. But I can’t lie: I haven’t eaten beans since the summer. However, I did find the posho to be kind of good, probably because I like sweet things and it had a vaguely sweet taste. After reading up on the nutritional content online, my eyes nearly popped out of my head. Posho is a food that is used to rehabilitate starving people, as it has nearly 300 calories per half cup. A 300-calorie serving goes a long way for a short girl that sits in an office all day. One weekend I ended up spending the day at my friends’ goodbye “dinner” at their bosses’ modest middle-class home in a suburb of Kampala. It turned out to be an eight-hour feast with nearly two-dozen different dishes served. The boss’ girlfriend and his sister served and prepared the food, kneeling to the men when they were serving them. The women stayed in the kitchen nearly the entire visit. We were asked to be there at noon, but didn’t eat until at least six. In addition to the already mentioned typical Ugandan foods, there was also chapatti (a thin spongy pancake-like bread, similar to Ethiopian injera) and many different types of stews and steamed, starch vegetables wrapped in banana leaves. They also served plates of spaghetti noodles for a Muzungu carbohydrate, and then there was Ugandan spiced cake and brandy at the end. It was a feast for ten Ugandan kings and three Muzungu girls. I would also attend parties at the babies home (a Ugandan orphanage for children under four-years-old) next door to my guesthouse. These usually occurred when the children were baptized or if one was leaving because they had been adopted. The typical party would involve soda for the children (I was astonished that children under four-years-old were given soda), samosas, and a Ugandan spiced cake, which is similar to carrot cake. Drum playing, singing, and dancing would eventually follow with the caffeine and sugar rushes.

170

 

I cannot say that I was the biggest fan of most Ugandan food, except for chapatti and posho. I was always a little afraid of the meat—the meat shops on the street smelled like death—but I did enjoy the experience of trying these new and different foods, even if they didn’t end up being my favorite. And even when I couldn’t communicate well with a particular host or their family, and regardless of where I was in Uganda, it did make people happy to see that the silly Muzungu girl was eager to try the local food. In retrospect, I guess I could have survived off trail mix, beef jerky, and peanut butter from America, like one of my housemates did. However, the irony was that she got the stomach flu, and I, who always ate the food, never got sick!

171

 

Notes from Kampala: Spotlight on Sanyu By Reta Raymond There are nearly two million known orphans in Uganda. Many of these orphans lost their parents to AIDS, or the children were discarded because they were born out of wedlock, or their parents were simply too poor to keep them. Additionally, women who give birth in Uganda have a high mortality rate. This high mortality rate is in part due to the requirement that women in labor must bring their own medical supplies needed for labor, or they will be turned away. Often that will lead to women giving birth outside a medical facility in unsanitary conditions. While in Kampala, I stayed at Sanyu Babies Home, which is the oldest babies home in Kampala. It runs completely on private donations and income-generating projects such as the guesthouse and the craft shop. There is no government funding for orphanages in Uganda. Sanyu has around fifty children at a given time, ages ranging from one day to four-years-old. This home has an excellent track record of getting children adopted, fostered, or reunited with their birth families. The children are found in pit latrines, maternity wards, and churches, not to mention near wells and on the side of the street. Some of the caretakers believe that some children are delivered to Sanyu to save the child from being sacrificed as part of a traditional “witchcraft” ceremony. They believe that certain beads worn around the children’s stomachs is evidence that a child has been chosen for sacrifice. Sanyu is one of the nicest babies’ homes in Uganda. There, children are given three meals and two snacks per day. When the children come to Sanyu they are tested for AIDS, receive vaccinations, and are given medical treatment by the resident nurses or taken to a hospital if they require additional care. Many of the children are malnourished, have

172

 

experienced trauma, or have other health problems when they are brought to Sanyu. For these lucky children, they live in the equivalent of a middle-class Ugandan home. However, Sanyu still faces many struggles in providing this standard of care to the children. One of the biggest issues that Sanyu faces is paying their medical bills. When medical bills stack up, the hospital will refuse to care for any more children. This past spring, one of the volunteer caretakers from outside Africa carried pneumonia to the home and infected many of the children. As a result of this outbreak, three children died and many were put in the hospital, which left Sanyu with some debilitating bills. Not only must Sanyu pay for the medical services when a child falls ill, but also for the medical supplies. For example, if a child needs stitches, Sanyu must bring the scissors, gauze, and thread. Therefore, the medical bills can escalate rapidly, and if they do not pay the bill for a long time, the hospital will simply refuse to treat any more of Sanyu’s children. After the pneumonia outbreak, Sanyu worried that they wouldn’t be able to pay the bill before another child would need to visit the hospital. Sanyu is also unique because it is a very transparent babies’ home, which may explain some of its success in gaining donors. Donors may pay hospitals, electricity bills, and

vaccinations directly on behalf of Sanyu. An administrator, whose decisions are subject to a board of director’s approval, runs the home. In sum, Sanyu is the best place for an orphaned child in Uganda to end up. Many international families, as well as local families, come to Sanyu to be matched with their potential child, and many international and local volunteers come to help care for the children. Many orphanages in Uganda are not nearly so lucky. For example, I visited another orphanage in Kampala where children were not fed one day per week, as a way of budgeting for food. At that orphanage, donations from international visitors were rare, as it is further out of the city and not

173

 

well known. That orphanage housed over seventy children, with all the boys living in a tworoom house without electricity. Furthermore, the children had to sleep two or three to a mattress.

For more information on how to help Sanyu, either by donating items or money or becoming a volunteer visit: http://www.sanyubabies.com. Additionally, a $7 donation to “Mercy for Mamas” will buy a “mama’s kit” which provides an expectant mother with all the medical supplies she will need at the hospital to deliver her baby safely and in sanitary conditions. Since Ugandan medical facilities do not provide medical supplies to treat their patients, hospitals and clinics turn women away if they do not bring the proper medical supplies necessary to deliver the baby. For more information, visit: http://www.mercyformamas.com.

174

 

Notes From Kampala: For the Least of These By Reta Raymond I visited a different orphanage, the Oasis of Life, which I believe has failed due to a lack of transparency. My prior article highlighted Sanyu Babies Home, an orphanage that is largely succeeding, despite the lack of government assistance. Oasis exemplifies how corruption and few direct donations can dramatically affect children’s health and well-being. Much of what I have heard about Oasis can’t be independently verified, but I will still repeat what I have heard. Oasis’ story is one that has broken my heart. There are around seventy children at Oasis who are between zero and eighteen-years-old, and there is not enough money to support them. The two or three live-in caretakers at Oasis are unpaid. The children eat one meal per day, but have been known to go without food for days at a time. To ration food, the children do not eat on Wednesdays; they simply pray. Tragically, it is rare that these children are sent to the hospital when they fall ill. Some of the children go to school, where the headmasters have waived their school fees, but others don’t. Oasis hopes to start a school for the children on the compound. The children sleep three to a bunk, and even the teenagers must have a bunkmate. The compound is split into a boys’ and a girls’ house, and the older girls sleep away from the little girls. However, all the boys sleep in the same room, at least three per mattress. Many of the foam mattresses are thin and falling apart from having been washed so often when the children wet the bed. The boys’ house did not even have electricity. The children were not sleeping under mosquito nets when one group of travelers visited, so they bought some for the children. However, a couple months later a friend told me that the nets were gone.

 

175

 

Despite these hardships, when my group of friends and I visited, there were only happy, smiling faces to greet us. The children danced to the beat of the drums and sang songs about how grateful they were to God. We kicked balls around with the children and they taught us how to wrap strips of colored paper to make beads for necklaces they would sell. However, when we broke out the boxes of cookies to give out to the children, you could see the desperation on their faces. These children were so hungry they would pile up on each other to get more cookies. They couldn’t help themselves. The Oasis children are a very special group, who are pleasant, thankful, and polite. One of my friends took Dixon, one of the young boys from Oasis, to the doctor one day, and then out for ice cream and fried chicken. Dixon saved a piece of chicken and brought it back for his best friend at the orphanage. It is amazing how well-adjusted, kind, and pleasant Oasis’ children are in spite of such hardship; but seeing the love that the caretakers and Pastor Robert, the in-house manager, have for these children makes it seem plausible. The government doesn’t support any orphanages in Uganda, so they all rely on private donations. The head pastor for Oasis travels all over the United States seeking donations for Oasis, but these children are going hungry and living in unsanitary conditions. I can only speculate on his success in finding donations, but his multiple trips between the United States and Uganda alone are evidence of some level of success. Regardless of how much he is able to raise, it seems pretty clear that most of the donations are not making their way back to the orphanage. A dollar goes a very long way in Uganda. For example, the estimated cost of food for fifty children at Sanyu Babies Home, another orphanage, is about $3500 per year. I was also told stories of church groups who send Oasis hundreds of dollars per month, and still, these children skip meals on a regular basis.

176

 

Something doesn’t sit well with me over this fact pattern.

While there is no hard

evidence available, it seems clear that there is some degree of misappropriation going on. Corruption, which is such a huge problem in Uganda, rears its ugly head yet again, and this time it is the children who pay. Unfortunately, none of my contacts in Uganda have found a local group that they would trust to receive donations on behalf of Oasis. Friends tell me to only give money to people who you know would directly deliver supplies to the orphanage. Meeting the children of Oasis was one of the best experiences in Uganda, but I left that country so heartbroken knowing that there are so few meaningful ways to help these children from my own country. This was certainly one of the most inhumane and appalling examples of corruption that I have ever heard of in Uganda, and I hope that the corruption ends soon for the sake of these children.

177

 

Notes From Kampala: Manipulating Laws to Silence Opposition By Reta Raymond I arrived in Kampala just two weeks after the opposition party ended its “Walk-to-Work” campaign. They ended the campaign because they determined that the protest had come at a cost of too many lives. Over roughly a month, people protested high fuel and commodity prices by walking to their respective offices instead of driving. The military responded with liberal use of tear gas, rubber bullets, and live ammunition. They killed at least ten civilians, including two children. The government has yet to investigate these deaths. President Yoweri Museveni’s proposed constitutional amendment was another response to the protests. He vowed that if he could not get parliamentary approval, he would seek a public referendum vote to pass the amendment. The president wished to amend the Constitution so that persons charged with murder, rape, defilement, economic sabotage (a term that is not found in the Penal Code and remains undefined), and rioting could not apply for bail until they served a mandatory 180-day sentence on remand. What made this proposed amendment so dangerous, I was told, was that charge sheets are often unsubstantiated or have weak evidence to support the charges. Therefore, those opposition party members who were arrested during the Walk to Work Protests could be easily charged with “rioting” and then, pursuant to the amendment, be put in jail for at least six months. This would be a quick and easy way for Museveni to slow the opposition party’s momentum. Then, Museveni could continue doing whatever he pleased without his main opponents inciting protests. This proposed amendment has drawn sharp criticism from local and international groups, as well as from members of parliament who believe that the proposal would violate fundamental human rights and freedoms. One National Resistance Movement Member of Parliament (“MP”) 178

 

stated, “In the last meeting, we told him that the move was unconstitutional and would one day fall back on us.”1 Another MP, Barnabas Tinkasimire, said, “The proposal is against people’s human rights and there are so many oppressive laws being forced on our people which we shall not accept.”2 Local attorneys suggest that, if enacted, the amendment would cause disharmony within the 1995 Constitution and would allow persons to be detained without trial. Specifically, it would abrogate several constitutional provisions, including the presumption of innocence, an independent judiciary, the right to be free from detention without trial, the right to bail, the nonderogable right to a fair trial, and the protection of liberty. I became involved when my boss enlisted me to write a paper that would discuss the constitutional amendment for the purpose of publication by a local group. At first I was

bewildered that the President could revoke the right to bail for such a potentially large group of people. What became clear was that he was actually trying to rationalize detention without trial for the “Walk to Work” protestors who opposed his politics. Even though Uganda boasts multiparty elections, such an amendment to the Constitution would effectively silence opposition party members through arbitrary arrest and detention without trial, which may signal that the country is actually a dictatorship. The President continues to push the amendment to this day. The proposed amendment may go for a public referendum vote, and, at least for show, the result is uncertain. The President has won every election since 1986, but the elections are by no means entirely free and
                                                             
1

Mercy Nalugo, Museveni, MPs to Clash Over Bail Law, DAILY MONITOR, July 17, 2011, http://www.monitor.co.ug/News/National/-/688334/1202200/-/bl61ecz/-/index.html.
2

Id. 179

 

fair. Therefore, the President’s amendment in a public referendum vote would probably be approved. However, Museveni’s government recently found a new way to silence the opposition group, Activists for Change, who organized the “Walk to Work” campaign. On April 4, 2012, a new law was imposed which declared Activists for Change to be an unlawful society, and made all of its public activities illegal. This enactment came the day before the group’s planned celebration of the “International Day of Police Brutality” in Kampala. Clearly this new law raises a host of constitutional issues, such as the right to assemble under Article 29 of the 1995 Ugandan Constitution. In the last year, Uganda has seen much unrest in its streets, as the opposition party members were inspired by the change brought about in the Arab Spring. Unfortunately, the protests have not materialized into a regime change like in Egypt and Tunisia, and Museveni’s response has been more akin to Syria’s. continue to protest for a better Uganda. However, the opposition party members bravely

180

 

A Moral Responsibility By Kerry McPhee* As a society, it is essential to analyze the world around us and to have the courage as individuals to defend what we believe is right, even in the face of adversity. “Upstanders” have shown these qualities throughout history, creating a positive influence in their social structure and changing society, including actions during the Holocaust, the Women’s Rights Movement in America, and the African-American Civil Rights Movement. After reviewing these specific cases, we will see the significance of raising future generations as upstanders. By the end of the widely known genocide called the Holocaust, approximately six million Jews were murdered, along with five million other people, including gypsies, homosexuals, and other religious and political opponents of the Nazi regime. During this time, German citizens were living under an extreme state of paranoia. Therefore, an upstander had to put his or her life at high risk. Before the outbreak of World War II, a woman named Jane Haining volunteered as a matron for over fifty orphan girls who were predominantly Jewish. The orphanage was located in Budapest, Hungary, where Haining lived until her arrest by the Gestapo (Nazi Police). Later, Haining died in one of the gas chambers at Auschwitz. She is quoted as saying, “If these children need me in the days of sunshine, how much more do they need me in the days of darkness?”

                                                             

* 2011 Hamburg High School Graduate; Freshman at the University of Buffalo. This is the winning essay in a high school essay contest sponsored by the Summer Institute for Genocide Studies, the Robert H. Jackson Center, and Impunity Watch. The winning essay was formally recognized at the Fifth Annual International Humanitarian Law Dialogs. 181

 

It is important for our society to learn from Haining’s courageous acts.

Haining

sacrificed her own safety and life to help other human beings because she knew that the Nazis were wrong. By learning from Haining’s example, individuals can become upstanders rather than bystanders and have an impact on the world around them. Haining’s experience shows us that, even when facing the greatest of adversity, we need confidence in our convictions to end prejudices in the world. It is people with these powerful qualities that will progress our world. Another example where the characteristics of an upstander were crucial in positively changing society is the passing of the Nineteenth Amendment, which granted women the right to vote. Women were treated as property and had no representation within their government. A woman's responsibility was to take care of children and maintain a stable home. Women were not treated as equals in society. It was not until 1920 when women saw real progress within America. Alice Paul and Lucy Burns are two perfect examples of upstanders. Paul started the National Woman’s Party in 1916, which would later have great influence on the women’s suffrage movement. Paul and Burns followed a non-violent civil disobedience movement while picketing the White House with banners demanding the right to vote. Without these National Women’s Party efforts, women may have never been able to get the right to vote. Paul and Burns are great examples of upstanders, showing the importance of perseverance in striving for progress within a cause. Upstanders can also give bystanders the drive to speak out against the injustices of the world. In much of America, it was not long ago when the bench that you sat on or the place where you were employed was based largely on your racial identity. Only fifty years ago, blacks and whites in the South were completely segregated, whether at school or on the public bus

182

 

system. African-Americans were treated as inferior due solely to their skin color. An upstander during that time period named Dr. Martin Luther King Jr. once said, “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” This quote is from Dr. King’s speech at the March on Washington, one of the biggest successes of Dr. King’s activist career to gain equal rights for African-Americans. Dr. King, an African-American, had felt the injustices in America because of his skin color and had decided to act upon his feelings towards the issue. He wanted equality for all and was determined to achieve his goal. Dr. King led many successful, peaceful protests. Like the March on Washington, he also led the Montgomery Bus Boycott where he was able to gain more supporters in order to achieve equality. Upstanders like Dr. King were confident that what they were accomplishing was for the betterment of society. Upstanders play a huge role in every society because they are the people who prevent the injustices of the world from happening or continuing. Upstanders not only change the world they live in, but, more specifically, they change societal factors for future generations to come. They are recognized for their determination and willingness to act for a better world. Therefore, upstanders have been significant throughout history. They deserve a spot in our memories and for their messages to be passed on from generation to generation.  

183

 

_________________________________________________________________________ AFRICA DESK _________________________________________________________________________ Cell Phone Videos of Rape by Gadhafi Soldiers Emerge in Libya June 21st, 2011 By Reta Raymond Impunity Watch Reporter, Africa TRIPOLI, Libya – Rebel forces in Libya recently produced a cell phone video to CNN depicting a woman being raped and sodomized by a man that the rebels believe is one of Gadhafi’s soldiers. The video has not been authenticated independently. While the man seen in the video is not dressed in uniform, both he and the cameraman have a distinct Tripoli accent. Much of the fighting between Gadhafi’s forces and the resistance has taken place in Tripoli, supporting the allegation that the men in the video are Gadhafi’s soldiers. Rebel forces claim they have confiscated numerous cell phone videos of women being raped and tortured. Rebel spokesman Abdullah al-Kabeira says rape has been “used as a weapon of war, because it [is] systematic.” However, the Libyan government has vigorously denied the allegations of rape used as a war tactic, as Prime minister Al-Baghdadi Ali al-Mahmudi stated “th[ese], like the other mercenaries lies, are false.”On 26 March, Libyan law student Iman al-Obeidi reported to international journalists at a hotel in Tripoli that she had been raped by soldiers from Gadhafi’s regime. Investigations have since been initiated by the International Criminal Court (“ICC”) at the Hague, to determine whether the use of rape in Libya’s conflict warrants a war crimes tribunal. The ICC also believes that drugs, such as Viagra, were provided to troops to encourage rape. ICC chief prosecutor, Luis Moreno-Ocampo, said that the investigation was still ongoing, but “the victims are coming forward.” Libyan psychologist Siham Serewa found that 5 percent of the 50,000 surveyed refugees in camps report they had been raped. Additionally, Secretary of State Hillary Clinton, has expressed her concern. Clinton stated “Gadhafi’s security forces and other groups in the region are trying to divide the people by using violence against women and rape as tools of war, and the United States condemns this in the strongest possible terms.” In Libya rape is particularly effective because both the woman, her family and sometimes an entire village are dishonored by the rape. Those women who are impregnated by their rapist are sometimes subject to “honor killings” by their fathers. Hana Elgadi, an aid worker, says that the killings are motivated by a sense of love for their daughters, stating “[The fathers] believe they are saving the girl.” The shame imposed on the family by society is so great that rebel forces have allegedly destroyed the confiscated rape videos to protect the victims and their families.

184

 

For more information, please see: BBC – Libya Rape Victims Face ‘Honor Killings’ – 14 June 2011 BBC – Libya: Clinton Condemns Rape as a Weapon of War – 17 June 2011 CNN – Libyan Rebels Say Captured Cell Phone Videos Show Rape, Torture – 17 June 2011 CNN – Libyan Government Denies Rape Allegations – 18 June 2011 _________________________________________________________________________ First Woman Sentenced to Life in Rwanda for Genocide July 8th, 2011 By Tamara Alfred Impunity Watch Reporter, Africa KIGALI, Rwanda - The only woman to ever be indicted by the International Criminal Tribunal for Rwanda (ICTR), Pauline Nyiramasuhuko, Rwanda’s former minister of family and women affairs, was sentenced to life imprisonment on June 24 for genocide and rape, among other crimes. Nyiramasuhuko, 65, her son Arsene Shalom Ntahobali and the former mayor, Elie Ndayambaje, were all given life sentences. Each had been convicted of extermination, rape and persecution as crimes against humanity during Rwanda’s 1994 genocide. Over 800,000 people, mainly Tutsis, were murdered during the conflict. “Hoping to find safety and security, they [ethnic Tutsis seeking refuge in the local government] instead found themselves subject to abductions, rapes, and murder,” said Presiding Judge William Sekule. “The evidence . . . paints a clear picture of unfathomable depravity and sadism.” The judgment comes 10 years after the trial started and 16 years since the first arrest. The case is considered the longest, largest and probably the most expensive in the history of international justice trials. A total of 189 witnesses were presented and approximately 13,000 pages submitted into evidence, creating more than 125,000 pages of transcript. Nyiramasuhuko, Ntahobali and Ndayambaje were convicted alongside three other accused, Sylvain Nsabimana and Alphonse Nteziryayo, both former governors of Butare prefecture, and Joseph Kanyabashi, the ex-Mayor of Ngoma Commune. Nsabimana was sentenced to 25 years for failing to discharge his legal duty. Nteziryayo was sentenced to 30 years for direct and public incitement to commit genocide during two speeches he delivered. Kanyabashi was sentenced to 35 years for genocide. While Nyiramasuhuko is the only woman to have been convicted by the ICTR, other women have been convicted by other courts in connection with the genocide. A Roman Catholic nun was sentenced to 30 years in prison by a tradition Rwandan court and two other Catholic nuns were convicted by a Belgian court. 185

 

Between April and mid-June 1994, hundreds of Tutsis were rounded up by militia members in Butare. Many were victims of assault and rape. The genocide was triggered by the April 6, 1994 shooting down of a plane carrying Rwanda’s Hutu president. In a statement, the United States hailed the judgments: “This ruling is an important step in providing justice and accountability for the Rwandan people and the international community,” State Department spokeswoman Victoria Nuland. “This conviction is a significant milestone because it demonstrates that rape is a crime of violence and it can be used as a tool of war by both men and women.” For more information, please see: AFP – US hails Rwanda Genocide Verdict – 26 June 2011 All Africa – Rwanda: Woman Sentenced to Life for Genocide – 24 June 2011 BBC News – Profile: Female Rwandan Killer Pauline Nyiramasuhuko – 24 June 2011 CNN – Ex-Rwanda Minister Jailed for Life on Genocide and Rape Counts – 24 June 2011 _________________________________________________________________________ Ghana Moves to Abolish “Witch” Camps September 21st, 2011 By Carolyn Abdenour Impunity Watch Reporter, Africa ACCRA, Ghana – Last week, Ghanaian leaders and civil society groups gathered at the Towards Banning “Witches” Camps conference to develop a plan to abolish the six witch camps in the Northern Region. Women and children reside in these witch camps after their communities banished them based on witchcraft accusations. Deputy Minister for Women and Children’s Affairs Hajia Hawawu Boya Gariba plans to develop legislation to close witch camps, reintegrate women into their communities, and outlaw accusing women of being a witch. However, witchcraft is not limited to the Northern Region. Last year, five adults burned a 72-year old woman to death in Tema, a suburb of Ghana’s national capital Accra, because they believed she was a witch. Another woman suffering from Alzheimer’s disease was tortured in Accra under witchcraft accusations after she got lost in the city. Accusing a woman of witchcraft violates Section 5 of Ghana’s 1992 constitution, which ensures human rights and makes cultural practice that dehumanizes or injures the physical or mental health of a person illegal. The constitution also states that a person is not guilty of a crime until a court of competent jurisdiction proves guilt. A community member accuses the women of witchcraft when a sudden death, misfortune, or calamity occurs in the community, or based on the woman’s behavior resulting from old age, menopause, or psychological disorders. A woman can be stoned, lynched, tortured, or banished from her community when she is accused. After she is accused, the woman receives a trial to determine if she is a witch. The trial consists of cutting the head off a 186

 

chicken. If the chicken lands face down or on its side, the woman is guilty. If it falls on its back, the woman is innocent. Once the trial is complete, the woman returns to her home or builds a new home at a “witch” camp. The woman settles into a thatched mud hut with her possessions and children until she can reintegrate into her community, if ever. Yaba Badoe directed and co-produced the film Witches of Gambaga. This film depicts the stories of the women in the Gambaga Outcast Home in the Northern Region of Ghana. Regarding the witchcraft accusations in Ghana, Ms. Gariba said, “The labeling of some of our kinsmen and women as witches and wizards and banishing them into camps where they live in inhuman and deplorable conditions is a violation of their fundamental human rights.” For further information, please see: Yaba Badoe – Witches of Gambaga – 21 Sept. 2011 GBC News – Abolish Witch Camps – 21 Sept. 2011 Christian Science Monitor – Ghana aims to Abolish Witches’ Camps – 15 Sept. 2011 Ghanaian Chronicle – My Grandma is Not a Witch – 12 Sept. 2011 _________________________________________________________________________ Egyptian Blogger’s Nude Photo Launches Global Debate on Women’s Rights in Arab World November 21st, 2011 By Zach Waksman Impunity Watch Reporter, Africa CAIRO, Egypt – On October 23, twenty-year-old Aliaa Magda Elmahdy posted a full frontal nude photograph of herself on her blog as a complaint against a ban on nude models in Egyptian universities and books. After the photo was removed from her Facebook page, she gave a friend of hers permission to post it on Twitter, under her own name and the hashtag #NudePhotoRevolutionary. The tweet, first posted last week, has been viewed more than one million times, and her daring act has set off a powder keg of debate in Egypt that may affect the country’s elections scheduled for November 28. Aliaa Magda Elmahdy's decision to post a nude photograph of herself on Twitter has drawn scorn from people on both sides of the political spectrum in Egypt. She justifies her actions by calling them “echoing screams against a society of violence, racism, sexism, sexual harassment and hypocrisy.” The mostly black and white picture depicts Elmahdy – who is naked except for a red ribbon in her hair, a pair of thigh-high stockings and red patent leather shoes – standing with her foot on a stool. Her blog post features several other nude pictures, including a variant of the main photo that uses it in triplicate with censor bars over her eyes, mouth, and sex organs. It is accompanied by a caption, written in both Arabic and English. 187

 

“Put on trial the artists’ models who posed nude for art schools until the early 70s, hide the art books and destroy the nude statues of antiquity,” it urges. “[T]hen undress and stand before a mirror and burn your bodies that you despise to forever rid yourselves of your sexual hangups before you direct your humiliation and chauvinism and dare to try to deny me my freedom of expression.” She later spoke to the media about the post and her motives. “I accepted [my friend’s request to post the photograph] because I am not shy of being a woman in a society where women are nothing but sex objects harassed on a daily basis by men who know nothing about sex or the importance of a woman,” Elmahdy told CNN during an interview Saturday. Since the early 1970s, Egypt has become one of the most conservative countries in the Middle East and Africa. Its majority-Muslim population frowns upon nudity, even as an art form. Most women wear veils to cover their heads. Even those who go bareheaded generally keep their arms and legs covered. In a Facebook post, Elmahdy described her actions as “echoing screams against a society of violence, racism, sexism, sexual harassment and hypocrisy.” Continuing further, she opined that women wore veils and covered their bodies due to religious and social pressure. “The women with head veil[s] that I know wear [them] because of their families or because they don’t want to be beaten in the streets,” she wrote in another Facebook post. “I don’t see why they always dictate to women, and not to men, what they should wear.” Another example of such a view of women took place during a Tahrir Square sit-in after the fall of ex-dictator Hosni Mubarak’s regime. After breaking up the protest with a series of mass arrests, security forces subjected female dissidents to virginity tests, which Elmahdy likened to rape. Human Rights First has issued a report that decries “a pattern of targeting politically active women” in Egypt. “Local activists report being assaulted, stripped, sexually baited, and threatened with charges of prostitution and virginity tests,” said Human Rights First’s Brian Dooley. “There appears to be a policy of trying to intimidate women out of the political sphere through this gender violence.” Since posting the photo, Elmahdy has been exposed to criticism from both liberal and conservative factions in Egyptian politics, especially with the election looming next Tuesday. The hardline Islamist Salafis have run a campaign against more liberal groups by saying that the liberals will corrupt the country’s morals. In that sense, her post could not have come at a worse time for liberal organizations. “This hurts the entire secular current in front of those calling themselves the people of virtue,” Sayyed El-Qimni, a prominent self-described secular figure, said referring to Islamists. “It’s a double disaster. Because I am liberal and I believe in the right of personal freedom, I can’t interfere,” El-Qimni said Wednesday night on one of Egypt’s most popular political talk shows, 90 Minutes. 188

 

An alleged connection between her and the April 6th Movement, a liberal organization that was instrumental in the revolt that drove out Mubarak, forced the organization into damage control mode on television. When faced with the allegations, a party spokesman said that it urged all of its members “to be role models as far as ethics are concerned,” meaning that her outrageous behavior would have precluded her joining. Another left-leaning party, the Egyptian Social Democratic Party, also expressed disapproval. “Many movements in Egypt, particularly Islamist movements, are trying to benefit,” said Emad Gad, one of its parliamentary candidates. “They say, ‘We have to protect our society from things like this, and if the liberals win then this woman will become a model for all Egyptian women.’” Among activists and commentators, Elmahdy received a considerably more favorable reaction. Iranian-born activist Maryam Namazie was impressed by her audacity, calling the decision “the ultimate act of rebellion” against the Islamists trying to take control of the post-Mubarak Egypt. To Egyptian-American journalist Mona Eltaway, Elmahdy served as “the Molotov cocktail thrown at the Mubaraks in our heads – the dictators of our mind – which insists that revolutions cannot succeed without a tidal wave of cultural changes that upend misogyny and sexual hypocrisy.” Human rights activist Ahmad Awadalla also responded, tweeting: “A feminist #Jan25 revolutionary posted her nude photo on the Internet to express her freedom. I’m totally taken back by her bravery!!” But for Elmahdy, who is suddenly a villain at home and a hero abroad, her plans are simple. “I am a believer of every word I say and I am willing to live in danger under the many threats I receive in order to obtain the real freedom all Egyptian are fighting and dying for daily,” she said. For more information, please see: CNN – Egyptian Blogger Aliaa Elmahdy: Why I Posed Naked – 19 Nov. 2011 Colombo Telegram – Egyptian Feminist’s Blog Received 2.5 Million Hits with Her Full Frontal Nude Shot – 18 Nov. 2011 International Business Times –Aliaa Magda Elmahdy, Nude Blogger, Gains Support from Egyptian Diaspora – 18 Nov. 2011 Daily News Egypt – Activist Posts Herself Nude, Sparks Outrage – 17 Nov. 2011 New York Times – Nude Blogger Riles Egyptians of All Stripes – 17 Nov. 2011 International Business Times – Aliaa Magda Elmahdy, Nude Blogger, Hits Back at Her Critics – 16 Nov. 2011 International Business Times – Aliaa Magda Elmahdy, Nude Blogger: The Fight for Women’s Rights in the Arab Spring – 16 Nov. 2011 Al-Masry Al-Youm – Fury Over Young Activist Publishing Nude Self-Portrait – 13 Nov. 2011 Aliaa Magda Elmahdy’s Original Blog Post – 23 Oct. 2011 _________________________________________________________________________

189

 

Former Ivory Coast President Gbagbo Taken into Custody by ICC - Charges Filed November 30th, 2011 By Tamara Alfred Impunity Watch Reporter, Africa YAMOUSSOUKRO, Côte d'Ivoire - Former Ivory Coast President Laurent Gbagbo was taken into custody by the International Criminal Court (ICC) Wednesday to face charges of murder, rape and other crimes allegedly committed by his supporters after last year’s election. He is scheduled to appear before judges at a hearing Monday afternoon to confirm his identity and that he understands his rights as a suspect and the charges against him. Gbagbo, 66, is the first former head of state arrested by the court since it was established in 2002. After having been under house arrest since his arrest in April, Gbagbo was transferred to the court in The Hague on an overnight flight on Tuesday. He is the sixth suspect taken into custody by the court, which has launched seven investigations, all of them in Africa. In fact, Gbagbo will now be sharing a cell block with former Liberian President Charles Taylor, who is awaiting for a verdict in his trial before the Special Court for Sierra Leone on charges of orchestrating atrocities in Sierra Leone. “Mr. Gbagbo is brought to account for his individual responsibility in the attacks against civilians committed by forces acting on his behalf,” Prosecutor Luis Moreno-Ocampo said in a statement. The court charged Gbagbo with individual criminal responsibility as indirect coperpetrator, for four counts of crimes against humanity – murder, rape and other forms of sexual violence, persecution, and other inhuman acts. In his application for authorization to investigate possible war crimes and crimes against humanity, Moreno-Ocampo cited sources who said at least 3,000 people were killed, 72 people disappeared and 520 other were subject to arbitrary arrest and detentions after Gbagbo refused to concede defeat following the presidential election last year. President Ouattara eventually took power in April of this year after help from French and United Nations (UN) forces. Gbagbo, a history professor, came to power in a flawed election in 2000. He failed to hold elections when his first five-year term expired and reschedule the vote a half-dozen times before it finally went ahead in November 2010. News of Gbagbo’s arrest sparked both elation and anger in Abidjan, which is still divided into neighborhoods supporting Gbagbo or Ouattara. “This is a great day for Laurent Gbagbo’s victims, for the people of Cote d’Ivoire, for international justice,” said Reed Brody of Human Rights Watch. “This is a very important message to all the leaders in the world that if they use the atrocities and crime to stay in power that they too could face justice.” Adama Diomande, a local leader of Ouattara’s political party, says there are 42 bodies in the mass grave and a total of 91 people were killed in the neighborhood during the postelection fighting. 190

 

Moreno-Ocampo stressed, however, that both sides of the political divide in Ivory Coast committed crimes and that his investigation is continuing. “We have evidence that the violence did not happen by chance: widespread and systematic attacks against civilians perceived as supporting the other candidate were the result of a deliberate policy,” he said. The UN, Human Rights Watch, and Amnesty International have all documented how forces loyal to Ouattara torched villages that voted for Gbagbo, and executed those that could not run away. The elderly and the disabled were killed by rolling them inside mattresses and then setting them on fire. Brody said Gbagbo’s indictment was only half the story as victims of crimes by forces loyal to Ouattara have so far gone unpunished. “This created the perception of victor’s justice. And if the cycle of violence in Cote d’Ivoire is to stop there has to be justice that is even handed and justice for the victims on both sides.” “Ivorian victims will see justice for massive crimes,” Moreno-Ocampo said. “Mr. Gbagbo is the first to be brought to account, there is more to come.” Additionally, Gbagbo’s arrest comes a week before parliamentary elections are scheduled to be held in Ivory Coast. Three political parties in an umbrella coalition with Gbagbo’s Front Populaire Ivoirien issued a statement saying they would boycott the elections as a result of Gbagbo’s transfer. For more information, please see: CNN – Former Ivory Coast president in International Court Custody – 30 Nov. 2011 Huffington Post – Laurent Gbagbo: International Criminal Court Charges Former Ivory Coast President With Crimes Against Humanity – 30 Nov. 2011 Reuters – Gbagbo Faces Charges of Crimes Against Humanity: ICC – 30 Nov. 2011 _________________________________________________________________________ Despite British Objection, Nigerian Senate Passes Bill Banning Homosexuality December 1st, 2011 By Zach Waksman Impunity Watch Reporter, Africa ABUJA, Nigeria – Gay rights in Nigeria took a step backwards on Tuesday. In the face of the United Kingdom’s threat to cut off aid to Africa’s most populous country, its Senate unanimously passed a bill that, if approved by the House of Representatives and signed by President Goodluck Jonathan, would make same-sex relationships illegal. The action has been met with widespread approval among the general population. The bill would have several significant effects on homosexuals. If passed, which is expected, anyone who enters into a same-sex relationship or civil union would face a 14year term in jail upon conviction. Those convicted of “witness[ing], abet[ting] and aid[ing]” the performance of a same-sex marriage and “support[ing] the registration [of 191

 

same]” would serve 10 years behind bars, as would anybody who registered or operated a gay nightclub or organization. It would also invalidate any certificates of marriage for same-sex relationships issued outside of Nigeria. Section 3 of the bill provides that “only marriage contracted between a man and a woman either under Islamic law, customary law or the marriage Act is [recognized] as valid in Nigeria.” Last month, British Prime Minister David Cameron warned that his country would consider withholding aid to countries that discriminated against homosexuals. In justifying the bill, Senate President David Mark considered it a way of protecting his country’s values. “If there is any country that does not want to give us aid or assistance just because we want to hold on to our values, that country can keep her aid and assistance,” he said, in what may have been a reference to the threat. “No country has the right to interfere in the way we make our own laws because we don’t interfere in the way others make their own laws.” Nigeria had been debating this bill for the past month. This morning, after the bill’s passage, The Sun Newspaper’s headline proudly declared “”Homosexuals are in trouble!” But according to Chude Jideonwo, a Nigerian journalist, the country is already strongly homophobic. To many, the belief is that “homosexuality is ‘of the devil,’ against our ‘culture’ and an encroachment of ‘sad Western values.’” Even before passage, he said that there was not much demand, “even a quiet one,” for gay marriage of any form. This raises the question of why the issue was raised in the first place. “I can’t recall a particular place where this type of marriage has taken place in Nigeria,” said Adetokunbo Mumuni, director of the Socio-Economic Rights and Accountability Project. “This particular thing they have assented to is a thing of no substance to Nigeria. They should focus on things that affect the majority of Nigerians.” In international circles, the bill has not received much praise. Andrew Lloyd, the U.K.’s High Commissioner to Nigeria, reiterated the possibility of sanctions, but added that the media may have overblown Cameron’s remarks. On Wednesday, he spoke to journalists in Dutse to better explain the British position, which he believed would be matched by most of the Western world. “It is wrong to punish people for mere expression of their relationships or for choosing to become what they have chosen for themselves,” Lloyd said. “Punishment is infringement upon their fundamental human rights and the western countries would not condone the action.” Amnesty International, a human rights group, condemned the legislation and called for the House to halt the bill’s passage. It is concerned with the potentially massive effect the law would have on human rights for a wide variety of people besides the newly-criminalized homosexual population. “This bill would have a chilling effect on a range of civil society organizations and events while inciting hatred and violence against anyone suspected of practicing same-sex relationships, including lesbian, gay, bisexual, and transgender people,” said Erwin van der Borght, director of the organization’s Africa Programme. “By aiming to single out and 192

 

deprive the rights of one group of people, this bill threatens all Nigerians by violating the country’s Constitution and international human rights obligations.” According to one of its supporters, an alleged effect of the bill would be an improvement in Nigeria’s overall health. “Same sex marriage has negative effect on the health of anyone that involved in it,” said Senator Nkechi Nwogu. “It was unanimous decision by the Senate to pass the bill into law. It is very unfortunate that the western countries want to force their culture on us.” With similar legislation being discussed or otherwise proposed elsewhere on the continent, this might be the right time for the continent start a dialogue on the topic, which is normally a social taboo. Many African countries depend heavily on foreign aid to remain afloat. To some, this situation presents an opportunity to deal with the issue directly, instead of trying to suppress it. “Now is the time to talk about it … to get our house in order. Let’s use this opportunity to say, ‘OK, if we didn’t have aid, how would we survive?’” said Nigel Mugamu of Zimbabwe. “Let’s talk about gay rights issues. Let’s turn this into a national – African discussion.” For more information, please see: CNN – Anti-Gay Law: ‘Why I’m Ashamed to Be Nigerian’ – 01 Dec. 2011 CNN – Nigerian Senate Passes Anti-Gay Bill, Defying British Aid Threat – 01 Dec. 2011 Daily Trust – Britain Won’t Accept Anti-Gay Law, Says Envoy – 01 Dec. 2011 Nigerian Tribune – Senate Recommends 14-Year Jail Term for Same Sex Marriage – 30 Nov. 2011 This Day – Senate Criminalises Same-Sex Marriage – 30 Nov. 2011 Amnesty International – Nigeria Urged to Halt Bill Banning Same-Sex Relationships – 29 Nov. 2011 People’s Daily – Senate Outlaws Same-Sex Marriage – 29 Nov. 2011 Vanguard – Senate Bans Same-Sex Marriage – 29 Nov. 2011 _________________________________________________________________________ Morocco to Revise Rape-Marriage Law after Shocking Suicide March 19th, 2012 By Zach Waksman Impunity Watch Reporter, Africa RABAT, Morocco – After sixteen-year-old Amina al-Filali killed herself on March 10, following a six-month forced marriage to the man who raped her, Morocco announced plans to revise its laws regarding the relationship between rape and marriage last Thursday. Protesters and feminists have long called for a controversial statute to be repealed, and the government has pledged to change its handling of rape.

193

 

Rape victims in Morocco are often subject to deep shame upon both themselves and their families, especially in rural areas such as where her hometown of Larache is located. Though the West African country’s laws provide for a prison sentence of 10 to 20 years for a person who rapes a minor, the rapist has a loophole that enables him to avoid incarceration. Under Article 475, an adult who has “corrupted a minor” may evade the charges by marrying the victim. A similar concept exists in the Christian Bible. This provision has often been used by families of rape victims to protect their honor. These “special circumstances” create an exemption to the requirement that both parties to a marriage be at least 18 years old. “Another, more terrible failure is that the family agreed to the “amicable solution” offered by their friends. Rape is a crime in Morocco, but it is also a taboo. The woman who has been raped is often seen as having been shamed—her marriage prospects change radically, and her morals are called into question,” wrote Laila Lalami in a piece for The Daily Beast. “In other words, the victim is blamed and the perpetrator is forgotten. ‘If we married her off,’ Amina’s sister Hamida told a Spanish network, ‘it was to protect her, so that people would not speak ill of her.’ The Filali family apparently preferred to sacrifice their daughter’s physical and emotional well-being rather than live with the reminder that she had been raped.” In Amina’s case, the family filed charges against the rapist last year. Her father, Lahsan alFilali, said that the prosecutor advised him of the option to have her marry him. The judge ordered it. He told Morocco’s 2M Television that he had no choice but to allow the marriage. “When the judge said they will marry, I did not agree, but I could not challenge the law. I wanted that man [the rapist] to go to prison,” he said. “At first I did not agree to this marriage, but when the court of family affairs called me and pressured me, I agreed.” After the marriage, the husband’s treatment of Amina did not improve. She was beaten and deprived of food. When she told her family about the life she was living, she was reportedly disowned. By March, she could no longer take the punishment, so she swallowed rat poison to end her life. As Amina died, her enraged husband dragged her down the street by her hair. The Ministry of Justice’s preliminary investigation concluded that the relationship was consensual, meaning that it was not rape. The stunning suicide prompted immediate calls for reform. A Facebook page called “We are all Amina Filali” has been created, and other protesters seek the incarceration of both the rapist and the judge who ordered the marriage. “Amina was triply violated, by her rapist, by tradition and by Article 475 of the Moroccan law,” tweeted activist Abadila Maaelaynine. With regards to women’s rights, Morocco is one of the more liberal Arab states. In 2004, the country all but eliminated polygamy, abolished a duty of obedience to the husband, and permitted women to retain assets after a divorce. These reforms were hailed by the West as a step forward for women’s rights. But there is still more work to be done. Since 2006, the 194

 

country has planned to adopt legislation banning all forms of violence against women, but it has yet to be seen. This incident might be the catalyst that drives the issue forward. “It is unfortunately a recurring phenomenon,” Fouzia Assouli, the president of the Democratic League for Women’s Rights, told the Associated Press. “We have been asking for years for the cancellation of Article 475 of the penal code, which allows the rapist to escape justice.” Moroccan communications minister Mustapha el-Khalfi confirmed the need for further reform. “We can’t ignore what happened, one of the things we are looking for is to toughen the sentence for rape,” he told Al Jazeera. “We are also looking to creating a debate on the cultural and social aspects to create a comprehensive reform.” Whatever the ultimate appearance of that reform may be, it is unlikely to constitute the end of the issue in Morocco. Last year, a government study found that about 25% of Moroccan women have been subjected to sexual assault at least once in their lives. “Legal reforms are not enough so long as Moroccan society views the victim of a rape as something that needs to be solved,” wrote Lalami. “Rape is not puzzle. Rape is a crime. Amina Filali’s death is a stain on our collective conscience.” For more information, please see: Morocco Board – Morocco: Outrage Grows over Minor Rape & Suicide – 19 Mar. 2012 The Week (UK) – Ordeal of Rape Victim Amina Filali Shocks Morocco – 19 Mar. 2012 Morocco Board – Morocco: Antiquated Law Led to Suicide of Minor – 18 Mar. 2012 Al Jazeera – Morocco Mulls Tougher Line on Rape-Marriages – 17 Mar. 2012 BBC – Morocco Protest against Rape-Marriage Law – 17 Mar. 2012 Montreal Gazette – Morocco to Revise Law after Rape Victim’s Suicide – 16 Mar. 2012 _________________________________________________________________________ Charles Taylor Guilty of Aiding Sierra Leone Civil War April 26th, 2012 By Tamara Alfred Impunity Watch Reporter, Africa The Hague, Netherlands - On Thursday, former Liberian President Charles Taylor, 64, was found guilty by an international criminal tribunal of aiding and abetting war crimes, in neighboring Sierra Leone’s civil war, that ultimately left 50,000 dead or missing. Taylor’s conviction is the first war crimes conviction of a former head of state by an international court since the Nuremberg trials of Nazi leaders following World War II. After 13 months of deliberation, a panel of three judges from Ireland, Samoa and Uganda issued the unanimous decision that Taylor was “criminally responsible” for aiding and abetting crimes during a protracted and notoriously brutal civil war. Taylor had been 195

 

accused of murder, rape, sexual slavery, conscripting children under the age of 15 and mining diamonds to pay for guns. “This judgment affirms that with leadership comes not just power and authority, but also responsibility and accountability,” said Prosecutor Brenda Hollis. “No person, no matter how powerful, is above the law.” United Nations (UN) human rights chief Navi Pillay echoed these sentiments, describing the conviction as “immensely significant,” saying it sends out a message that even the most powerful are not above the law. “[T]his is undoubtedly a historic moment in the development of international justice,” said Pillay. “A former president, who once wielded immense influence in a neighboring country where tens of thousands of people were killed, mutilated, raped, robbed and repeatedly displaced for years on end, has been arrested, tried in a fair and thorough international procedure.” One disappointing note issued by Justice Richard Lussick of the Special Court for Sierra Leone states that prosecutors failed to prove that Taylor had direct command over the rebels who committed the various atrocities. Taylor, who remained stoic throughout the reading of the verdict, had maintained his innocence and pleaded not guilty to all charges against him. In Freetown, Sierra Leone, where every television set was tuned in to the reading of the verdict, the mood was sharply contrasted from Taylor’s own. “Relief. Relief,” said Jennifer Harold, national director of the charity, World Vision. “Everybody is thrilled.” “The trial is very important to all victims because it will help to hear our wounds,” Jabati Mambu, who lost his right hand in the war, told the Associated Press. Mambu said the tribunal is a landmark in efforts to end impunity for leaders who sponsor rebellion. Ibrahim Tommy, who leads the Center for Accountability and Rule of Law – a rights group in Freetown, had a slightly different viewpoint. While he says the trial has brought “a sense of relief,” he told The New York Times, “I’m not sure it will bring closure to the victims,” but the trial was “a genuine effort to ensure accountability for the crimes in Sierra Leone.” And yet, for the thousands of young men whose limbs were hacked off, the teenage boys sent into battle high on drugs, and the pubescent girls turned into sex slaves, the trial and verdict come much too late. Regardless of Taylor’s guilty verdict, these victims will harbor unspeakable memories until the day they die, and numerous questions will remain about the atrocities and Taylor’s relationship with the Revolutionary United Front (RUF) rebels. Taylor’s life has never failed to be an interesting one. Taylor was born in Liberia, studied 196

 

economics in the United States (US), escaped from a Massachusetts jail after being charged with embezzlement, before ultimately becoming a pivotal figure in Liberian politics after he overthrew the regime of Samuel Doe in 1989, plunging the country into a bloody civil war that left 200,000 dead over the next 14 years. Taylor became president of Liberia in 1997, where he remained until 2003, when heavy international pressure forced him out of office. At that point, he lived in exile in Nigeria, where he was arrested in 2006 attempting to cross the border into Chad. The trial was a meticulous one, beginning in 2007 at the Special Court for Sierra Leone (SCSL) in The Hague, after it was moved following initial proceedings in Sierra Leone where emotions about the war still run high. UN officials and the Sierra Leone government jointly set up the tribunal to try those who played the biggest role in the war atrocities. Producing almost 50,000 pages of transcript and over a thousand exhibits, Taylor’s trial offered unique insights into Liberian and Sierra Leonean history, as well as uncovered two diametrically opposed views of Taylor’s role in West Africa. In Taylor’s version, he is a peacemaker for the international community. In the prosecution’s version, Taylor represents the darkest corner of Africa. Throughout the high-profile trial, judges heard testimony from more than 100 people, including Taylor himself and supermodel Naomi Campbell. Prosecutors cast Taylor as a ruthless leader who as president of neighboring Liberia funneled weapons, ammunition and other equipment to Sierra Leone rebels in return for diamonds mined by slave laborers in Sierra Leone. Witnesses testified to the grisly violence by the rebels, including chopping off the arms of civilians and shooting and disemboweling pregnant women and children. Some spoke of being asked if they wanted “long sleeves or short sleeves” – either the hacking off of hands or the entire forearm. Others, like former secret service agent Joseph Marzah, known as ‘Zigzag,’ confessed to displaying “heads on sticks and car bumpers,” killing babies, cutting open pregnant women and eating “Nigerians and white people.” Meanwhile, during Taylor’s own seven months on the witness stand, Taylor portrayed himself as a statesman and regional peacemaker. “Brave men, women and children have taken the stand against Charles Taylor,” the prosecutor’s office said in a written statement. “They have included amputees, rape victims, former child soldiers, and persons enslaved, robbed, and terrorized. We are awed by their courage.” The man who indicted Taylor, US lawyer and Impunity Watch’s founder, David Crane, says “a clarion bell rang out clearly around the world today, the clear sound of justice, putting on notice that tyrants who kill their own citizens and others will be held accountable.” With the pronouncement of the guilty verdict, a sentencing hearing is set for May 16. With no death penalty in international criminal law, Taylor would serve out any sentence in a British prison. For more information, please see: BBC News – Charles Taylor Guilty of Aiding Sierra Leone War Crimes – 26 Apr. 2012 197

 

CNN – Court Finds Charles Taylor Guilty of Aiding War Crimes – 26 Apr. 2012 The New York Times – Ex-President of Liberia Aided War Crimes, Court Rules – 26 Apr. 2012 Radio Netherlands Worldwide – Sierra Leone: Taylor Trial a Triumph for International Justice, but Case Stirs Up Cordoned-Off Past – 25 Apr. 2012 The Washington Post – Charles Taylor Verdict Expected in International Court’s WarCrimes Trial – 25 Apr. 2012 Time – Judges to Deliver Verdicts in Taylor Trial – 24 Apr. 2012

198

 

_________________________________________________________________________ ASIA DESK _________________________________________________________________________ Children with Disabilities Denied Education in Nepal August 27th, 2011 By Jessica Ties Impunity Watch, Asia KATHMANDU, Nepal – A report by Human Rights Watch expressed concern that children living with disabilities in Nepal are denied access to education. Contributing to this concern is the inaccessibility of school structures, lack of instructors who are properly trained to accommodate children with disabilities and neighborhood schools denying admission to disabled children. These factors result disproportionately in low school attendance and high dropout rates for disabled children when compared to children who do not suffer from a disability. According to Education Ministry officials, disabled students comprise a significant number of the almost 330,000 students who are not in school despite being school aged. Shantha Rau Barriga of Human Rights Watch reports, “[t]ens of thousands of children with disabilities in Nepal are being shut out from or neglected by the school system.” Barriga also states that these failures exist despite a national policy of inclusive schools. According to the Human Rights Watch report, “Futures Stolen: Barriers to Education for Children with Disabilities in Nepal” which is based on 97 interviews, more than half the interviewed families of disabled children stated that their children had been denied admission to schools and many of the parents were not even made aware that their children had the right to an education. The inability of parents to enroll their children in schools has prompted some parents to state that they have “…no choice but to lock their children with disability in a room or tie them to a post” according to the report. One parent reported to Human Rights Watch that she would be unable to care for her other child and manage the household if she had to constantly care for her disabled child and therefore locks him in a room, only letting him out one or two times a day to see the sun. The problem facing Nepal’s disabled children also extends to those who manage to attend school. Classes are often segregated and the classes offered to disabled students are generally inferior to classes attended by children who are not disabled. In one case, Nepal’s failure to take into account differences in learning ability caused a fifteen year old boy to spend three years in Class one, three years in Class two and then one year in Class three. Despite the time spent in school, the student reports that he still does not know the alphabet and only passed because teachers began to take exams for him. 199

 

The inaccessible structure of schools also contribute to the difficulties disabled children face. One student interviewed by Human Rights Watch, a sixteen year old named Amman, reported that he is forced to crawl to his classroom because the school entrance has steps that he is unable to access any other way and no other entrance to the school. He is also unable to use the restroom without assistance and because staff is unwilling to help him, another student must either run home to get his mother or he must wait until the end of the school day. The extent of the problem is unknown because there is no reliable data about the number of children who have a disability but it is estimated that between .45 percent and 1.63 percent of Nepal’s child population is living with at least one disability. These failures come despite Nepal’s ratification of the UN Convention on the Rights of Persons with Disabilities on March 1, 2008. For more information, please see: Hindustan Times – Right to Equality, but Only on Paper – 27 Aug. 2011 Nepali Times – Educating Children with Disabilities – 26 Aug. 2011 Daiji World – Nepal’s Hellen Kellers, Stephen Hawkings Await Their Rights – 24 Aug. 2011 The Himalayan Times – Disabled Kids Denied School Admission – 24 Aug. 2011 Human Rights Watch – Nepal: Separate and Unequal Education – 24 Aug. 2011 United Nations – Convection Optional Protocol Signatures and Ratifications – 1 Mar. 2008 _________________________________________________________________________ Landmark Death Sentence for Shooter of Unarmed Civilian August 29th, 2011 By Hibberd Kline Impunity Watch Reporter, Asia ISLAMABAD, Pakistan — On August 12, a Pakistani anti-terrorism court sentenced Shahid Zafar, a member of the Sindh branch of the Pakistan Rangers paramilitary force, to death in what many have hailed as an unusual rebuke of Pakistan’s powerful security establishment. According to attorneys, the speedy trial for the 29 June killing of eighteen-year-old Sarfaraz Shah in Karachi marks the first time that a Pakistani civilian court has sentenced a serving member of the military to death. The Rangers paramilitary group technically falls under the control of the civilian Ministry of the Interior. However, the Rangers are commonly considered to be a part of the armed forces. Six other men, including five Rangers and a civilian, were charged with murder and terrorism and sentenced to life in prison. Zafar was fined 200,000 rupees and the other individuals were each fined 100,000 rupees to be paid to the victim’s family. 200

 

The shooting was caught on video and was broadcast on Pakistani TV. Against the background of already widespread criticism of the Pakistani military establishment’s failure to detect the American commando raid that killed Osama Bin Laden, the shooting sparked a rare public outcry leading to the replacement of the Sindh police chief and the director-general of the Sindh branch of the Pakistan Rangers paramilitary force. However, prosecution lawyer, Muhammad Khan Buriro, took care to distinguish the court case from an attack on the military; “I would like to say that it was the personal action of the soldiers involved, and not an act by the Rangers,” Buriro said. Attorneys for the defense argued that Shah was shot after trying to rob someone and have vowed to appeal the court’s ruling. Death sentences are rarely carried out in Pakistan. The televised shooting of an unarmed man has also instigated criticism of Pakistan’s human rights record and of its government for what many see as its failure to reign in security forces. Human rights groups say that the approximately 10,000 Rangers in Karachi are not sufficiently trained to keep order amongst civilians. Human Rights Watch (HRW) applauded the verdicts. HRW’s Pakistan director went even further to say that he hopes that the verdict will help to address “the impunity with which Pakistan’s trigger-happy security and paramilitary agencies perpetrate abuses.” However, some believe that the military may be attempting to increase public accountability of its own accord following the US raid on Osama Bin Laden. Last week, a Pakistani naval official announced that three senior naval officers will face courts martial on charges of negligence relating to the US commando raid in May. For more information, please see: Arab News – Death Sentence for Soldier in Karachi Killing – 12 Aug. 2011 BBC – Pakistani Shooting Film Paramilitary Sentenced to Death – 12 Aug. 2011 Guardian - Pakistani Ranger Sentenced to Death for Killing Unarmed Civilian – 12 Aug. 2011 Reuters – Pakistan Court Hands Death Penalty to Soldier for Civilian Killing – 12 Aug. 2011 _________________________________________________________________________ Burma’s Armed Forces Accused of Abuses Against Kachin Civilians October 22nd, 2011 By Jessica Ties Impunity Watch Reporter, Asia NAYPYIDAW, Burma – Burma’s military has been accused of killing, attacking and exploiting Kachin civilians since hostilities between the Burmese military and the Kachin Independence Army (KIA) began five months ago. Abuses by Burmese soldiers have 201

 

caused an estimated 30,000 Kachin civilians to become displaced after being forced to flee their homes in fear of the army. One farmer described his ordeal by explaining that they “. . . were afraid to live in the village so we went to hide in the jungle…we lived there for one month . . ..” Another villager reported that Burmese soldiers are now living in the homes of those who were forced to flee after their village was invaded by the army. Among the abuses causing citizens to flee their homes is the unnecessary killing of civilians. In one case, Burmese soldiers entered Hang Htak village in search of KIA members and killed a fifty-two year old woman and her four year old grandson in their home as they tried to leave. There have also been reports of military forces entering villages and aimlessly firing their weapons at civilians. Other civilians stated that they were held and aggressively interrogated by Burmese soldiers who threatened to kill them. One villager stated, “I was very afraid when they [soldiers] came and asked questions. I was afraid they would kill us.” Some civilians have also reported being raped or witnessing a rape by soldiers. According to the September 2011 report to the United Nations by the Special Rapporteur on Human Rights in Burma, at least eighteen women and young girls have been “gang- raped” by the Burmese military and at least four of those victims were killed. Those who survive encounters with the army have often reported being forced to work for the military without compensation. One woman reported that the army forced her to carry provisions up a steep two mile road despite the fact that she was six months pregnant. She stated that they were forced to make the strenuous three hour trek twice a day and were forced to eat their own food because they were not fed by the army. Violence by the Burmese army has caused many Kachin civilians to attempt to flee into China. In response, the Chinese government has deployed 2,000 troops to the border to prevent refugees from entering the country and has also prevented the transfer of food and medical supplies to areas where over 20, 000 displaced Kachin are taking shelter. Fighting between the Burmese army and the KIA erupted on June 9th after a seventeen year ceasefire between the ethnic Kachin and the Burmese government forces. The KIA has stated that they will not stop fighting until Burma agrees to allow the ethnic group full political power and other rights. For more information, please see: Chinland Guardian – Churces Attacked, Women Raped and Civilians Killed in Kachin State – 22 Oct. 2011 Radio Free Asia – Renewed Clashes Near Chinese Border – 20 Oct. 2011 Asian Correspondent – Burma’s Civil War: Who is Really Pulling the Strings? – 19 Oct. 2011 Human Rights Watch – Burma: Army Committing Abuses in Kachin State – 18 Oct. 2011 _________________________________________________________________________ 202

 

Peaceful Protest Turns Deadly in Indonesia October 31st, 2011 By Greg Donaldson Impunity Watch Reporter, Asia JAYAPURA, Indonesia – On October 19, 2011, approximately 1,000 Papuans gathered for a peaceful pro-independence rally in the Papua provincial capital. However, the demonstration turned violent as Indonesian police and the army arrived and fired warning shots to disperse those in attendance. Witnesses explained that people either began running or immediately surrendered by putting their hands up. Approximately 300 people were arrested. Upon arrest detainees were ordered to take their clothes off and stood in their underwear while police reportedly beat them with pistols, canes and batons. The army and police pursued those who ran into the nearby wooded area and made several more arrests. It has been confirmed that at least three people died during the crackdown while the Australian Broadcasting Company reports that six people died during the incident. Of the three confirmed dead, witnesses established two of them were shot by the army or police. Daniel Kadepa, a twenty-five year old law student was shot in the head as he ran away from soldiers. Yakobus Samansabra had bullet wounds to his torso reportedly in the back. The Indonesian Government denies the deaths took place near the rally and were caused by bullets. Instead the government claims the injuries and deaths were caused by a sharp object. Everyone who was arrested at the event has been released with the exception of six individuals. Five of those individuals are charged with treason and one is charged with possession of a sharp weapon. Human Rights Watch has called on President Susilo Bambang Yudhoyono for the “immediate establishment of an independent investigation into the deaths of the protestors and the ongoing violence in Papua.” John Baransano, a Protestant minister in Jayapura who was present at the rally, cries for international help. “I call on the churches around the world to care about this. I’m calling for an intervention for us because today’s events show that we need a transitional government and this needs to happen to help the people of Papua,” he said. “We are now in a dangerous situation and we’re calling for a UN intervention to help us.” The government appears prepared to resolve its differences with the Papuans. On Thursday President Yudhoyono told cabinet members “we have tried to solve the problem using a security approach, but that did not work. Now we will focus on the prosperity of our brothers and sisters.”

203

 

Many believe a dialogue between the two parties is essential to ending violence in the region. For more information, please see: Jakarta Globe – Activists Call for Dialogue on Papua’s Future – 30 Oct. 2011 Australia Broadcasting Company – Video Shows Aftermath of Papua Crackdown – 28 Oct. 2011 Human Rights Watch – Indonesia: Independent Investigation Needed Into Papa Violence – 28 Oct. 2011 Jakarta Post – Govt ‘Not to Use Force’ to End Violence – 28 Oct. 2011 _________________________________________________________________________ Kim Jong-il: A Legacy of Brutality December 24th, 2011 By Hibberd Kline Impunity Watch Reporter, Asia PYONGYANG, North Korea - One week after Kim Jong-il’s death, the 69 year-old, ruthless dictator continues to hold the spotlight of world attention hostage from beyond the grave. Speculation in the media and among foreign policy analysts as to the potential impact of Kim Jong-il’s death on North Korea’s future has run the gamut from detente to crackdown to collapse and back again. However, as the world struggles to discern a murky future it must not forget or ignore either the brutality of Kim’s reign or the continuing, horrific, human suffering in the Democratic People’s Republic of Korea (DPRK). Like his father before him, Kim Jong-il used the coercive power of the state to reach into and attempt to control nearly every aspect of the daily lives of Koreans living in the North. Any perceived threat to the dominance of the personality cult of the “dear leader” over the hearts and minds of the North Korean people was filtered out of public consumption and dealt with mercilessly. Under Kim’s direction, the DPRK’s political machine is widely reported to have worked vigilantly to stomp out its citizens civil liberties including; privacy, and freedom of expression, religion, association and the press. One of the regime’s methods for achieving its aims has been to effect a practically universal stranglehold on the flow of information within the country. According to the United States Central Intelligence Agency (CIA), the DPRK boasts no independent media and all radios and televisions in the country are “pre-tuned to government stations.” Furthermore, people living in the North are forbidden to listen to, watch or read foreign media and all foreign broadcasts are jammed by the government. Violators of the government’s media policies are punished swiftly and severely. Although the DPRK’s constitution provides for the free exercise of religion, the CIA believes that the reality in the North falls far short of the idealistic text. North Korea’s 204

 

media continuously showered praise on the “dear leader,” and the population was required to demonstrate unwavering and absolute devotion. State sponsored religious groups do exist, ostensibly to provide an illusion of choice to the outside world. However, autonomous religious activity has all but disappeared entirely from the isolated state. In order to maintain its grip on society, the DPRK’s government continues to punish political dissent harshly. Once accused of disloyalty, political dissenters and other “enemies of the state” are denied access to an impartial and independent judiciary and receive no due process in sentencing or punishment. Moreover, public and secret executions, forced labor, intimidation, imprisonment and torture are reportedly widely utilized to impose the government’s will on the populace. Additionally, a recent report by Amnesty International estimated the number of political prisoners currently languishing in the country’s remote gulags to be upwards of 200,000. Tens of thousands are estimated to have died from exhaustion, starvation, exposure, sickness or execution in the camps under Kim Jong-il. Yet, the North’s stranglehold on information and its treatment of political prisoners, though horrendous and inexcusable, are unlikely chief among the many pressing woes that most of the DPRK’s population continue to face on a daily basis. At the close of 2011, the DPRK’s population is once again believed to be facing widespread famine. PBS Newshour reports that flooding and a severe winter have decimated the North’s food production. As a result, DPRK has set food rations for its nonmilitary, non-political elite, civilian population at “200 grams or less per person per day.” According to the World Health Organization, the minimum daily energy requirement is around 600 grams of food per person per day. An estimated 60% of North Korea’s population depends on government rations for survival. The volatility of the DPRK’s food security has been further aggravated by the large number of persons thought to be internally displaced (IDPs) as a result of flooding and famine. However, the exact extent of the impact of IDPs on North Korea’s food security is unknown, because an accurate number of IDPs in the isolated country is difficult to determine. As the situation appears to be worsening, international aid organizations fear that children, pregnant women and the elderly will face a significant risk of starvation throughout the winter. However, food scarcity is nothing new to Koreans living in the DPRK. Kim Jong-il’s 17year rule was marked by food shortages and malnutrition punctuated by periods of widespread starvation. In 1992, he launched his so-called “Military First” policy, which stressed intensive military spending above feeding DPRK’s population. In times of economic hardship or agricultural failure this policy called for the military and state officials to be provided for first and often resulted in slashed food imports and severe hardship for much of the civilian population. Furthermore, the DPRK has repeatedly been accused of stockpiling international food aid for use by its military. In addition to failing to provide food security to its people, the government under Kim Jong-il allowed human traffickers to operate with virtual impunity. Women continue to be 205

 

systematically sold to buyers in China as wives, sex slaves or laborers. Furthermore, inside the country, the DPRK’s government effectively treats many of its citizens as slaves by mandating their type of employment. In light of the ignominious human rights record of Kim Jong-il’s government, Kim’s death has sparked a series of serenades by international humanitarian organizations echoing previous calls from around the world for North Korea to commence immediate and drastic reforms. A plea from Human Rights Watch quoted the UN Special Rapporteur for Human Rights in North Korea’s depiction of DPRK human rights abuses as “harrowing and horrific,” “egregious and endemic,” “systematic and pervasive” and “in a category of its own.” Unfortunately, the prevailing view among analysts seems to be that the DPRK’s leadership will likely not be receptive to outside calls for quick and thorough reform. Indeed, many have pointed to Kim’s ruthless purge of potential enemies throughout the North’s society upon taking power in the 90′s and suggest that the military has already begun to initiate similar activities on behalf of the “dear leader’s” son Kim Jong-un. While the future of the North Korean Government’s stance on human rights remains ambiguous at best, it may still be premature to predict whether or not Kim Jong-il’s death will have a significant impact on the suffering of the North Korean people. However, even if Pyongyang were to completely reverse its stance on human rights, salving the brutality of Kim Jong-il’s legacy would require substantial assistance from the international community for years to come. Sources cited by Amnesty International report that the people of North Korea are eating grass and bark as they struggle to survive. Meanwhile, a cruel dictator lies bedecked in flowers. For more information, please see: CBC News – 7 Questions about North Korea’s Future – 20 Dec. 2011 Amnesty International – North Korea: Kim Jong-il’s Death Could Be Opportunity for Human Rights – 19 Dec. 2011 Huffington Post – Kim Jong Il’s Death Elicits Plea for End to Human Rights Abuses in North Korea – 19 Dec. 2011 Human Rights Watch – North Korea: Kim Jong-Il’s Legacy of Mass Atrocity – 19 Dec. 2011 PBS Newshour – Aid Groups: Children in North Korea at Risk for Starvation This Winter – 08 Dec. 2011 Amnesty International – North Korean Prison Camps Grow Larger – 11 May 2011 Amnesty International – Images Reveal Scale of North Korean Political Prisoner Camps – 3 May 2011 Human Rights Watch – World Report 2011: North Korea — 24 Jan. 2011 UN News Center – Human Rights Situation in DPR Korea Is Bleak, Independent UN Expert Says – 15 Mar. 2010 _________________________________________________________________________ 206

 

Tibetan Anger Leads to Self-Immolations April 2nd, 2012 By Greg Donaldson Impunity Watch Reporter, Asia DHARMSALA, India — More than thirty-three Tibetans have set themselves on fire in recent protests against the Chinese government. The Tibetans believe the Chinese government is attempting to destroy their identity and force Tibetans to conform to the culture the government has established. The protests and self-immolations began in China but now have spread to the nearby country of India. Many Tibetans who have been exiled from China reside in India. Since last Monday two Tibetans have died from setting themselves on fire in India. The self-immolations came in protest of the visit of Chinese President Hu Jintao’s to India to attend an economic summit. Each protestor set themselves on fire and then ran to a public place where they could be heard protesting the Chinese government. Both demonstrators were rushed to the hospital after the fires were extinguished but each died in local hospitals. The first demonstrator, Jamphel Yeshi, set himself on fire last Monday. By Tuesday afternoon more than two-hundred supporters marched through the city center of Dharamsala, India proclaiming Mr. Yeshi a martyr. The supporters carried Tibetan flags and posters with several images of Mr. Yeshi’s body on fire. Tenzing Namdak, a man who participated in the Tuesday march told reporters that Mr. Yeshi “self-immolated for the cause of Tibet.” He continued “all the Tibetans have tried so many ways to get the attention, and somebody had to take the lead.” The march continued throughout the upper part of the city with the crowd chanting “What do we want? Freedom!” “United Nations , please support us.” “Stop the killing.” The second demonstrator, Lobsang Jamyang, gave three messages to a friend he dined with before self-immolating himself. The first message was that Tibetans in his village should work hard to preserve their language against the onslaught of Mandarin. The second message was that a couple in his village should reunite after being recently divorced. The third message was that Tibetans should be strong against China and not be cowards. China’s crackdown seems to have created a sense of nationalism among the Tibetans. Kelsang Nyima, who left Tibet in 1998 and recently returned, to his Tibetan village in China, said he “can strongly feel the growing sense of nationalism among Tibetans. It is a huge change.” Each Wednesday across the Himalayan plateau, Tibetans wear traditional dress, only speak in Tibetan, and avoid purchasing from shops run by Han Chinese. The government controlled newspaper, The China Daily, has proposed a solution for the Tibetans: “embrace the goodwill of the Chinese government.” 207

 

For more information please see: Boing Boing – Tibet is Burning: Exiles Mourn Latest String of Self-Immolation Suicide Protests – 2 Apr. 2012 News Track India – Tibetan Exiles Mourn Recent Self-Immolation Incidents – 1 Apr. 2012 Washington Post – Self-Immolations Reflect Rising Tibetan Anger – 1 Apr. 2012 New York Times – Tibetan Exiles Rally Around Delhi Self-Immolator – 28 Mar. 2012

208

 

_________________________________________________________________________ EUROPE DESK _________________________________________________________________________ Human Rights Chief Condemns European Participation in U.S. Counter-Terrorism Efforts September 3rd, 2011 By Alexandra Halsey-Storch Impunity Watch Reporter, Europe BRUSSELS, Belgium – On September 1, Thomas Hammarberg, the Swedish Diplomat and Commissioner for Human Rights at the Council of Europe, released a statement condemning European nations for aiding and committing countless crimes against humanity over the past ten years in collaboration with the United States and its War on Terror. He accused several EU nations, including Germany, Italy, Lithuania, Macedonia, Poland, Romania, Sweden, and Britain for permitting, protecting and participating in the United States’s Central Intelligence Agency’s (“CIA”) Rendition, Detention and Interrogation Program (“RDI”), which has deeply violated the systems of justice and human rights protection. There is “no doubt,” Hammarberg said, “that all 3 elements of this program have entailed systematic violations of human rights.” For example, in June 2006, the Council of Europe released a report discussing the “unlawful inter-state transfers of detainees” by European nations bound by the European Convention on Human Rights and the European Convention for the Prevention of Torture. The report claimed that the United States had operated under the precept that combating terrorism was outside the scope of issues governed by international criminal laws and the Geneva Convention. Using new terminology and concepts like “enemy combatant” and “rendition,” the United States, with the help of European counterparts, was thereby able to generate a “spider’s web” of disappearances, secret detentions, and otherwise illegal interstate transfers of detainees that run contrary to international principals of human rights. The report determined that the spider’s web has included a “world-wide network of secret detentions on CIA ‘black cites’ and in military or naval installations.” Furthermore, some Council of Europe member States “knowingly colluded with the United States to carry out these unlawful operations” while some “tolerated them or simply turned a blind eye.” Regardless of the type of participation, “all involved nations have gone to great lengths to ensure that such operations remain secret and protected from effective national or international security.” Being held at the “black cites,” kept the suspects “outside the reach of any justice system and rendered them vulnerable to ill-treatment,” said Hammarberg. The February 14, 2007 report issued by the International Committee of the Red Cross, details, in great depth, the treatment of “high value detainees” held by the CIA. Specifically, when initially captured, high value detainees were photographed with and without clothing, subjected to evasive 209

 

body cavity checks (including rectal examinations), and thereafter shackled and blindfolded — in some instances so tightly that severe wounds resulted. Hammarberg said that European governments were “deeply complicit” in U.S. counterterrorism strategies, including the pervasive torture techniques meant to coerce cooperation during interrogations. Often, detainees were not permitted to use the toilet and in some circumstances were forced to urinate or defecate into a diaper or on themselves. Interrogation methods included suffocation by water, prolonged stress standing (naked, with arms extended and chained above one’s head for two to three days at a time), beating and kicking, confinement in a box, which severely restricted movement, prolonged nudity, sleep deprivation, exposure to cold temperatures, and starvation. As Hammarberg noted, it is evident that as we approach the ten-year anniversary of the devastating 9/11 attacks it is important to pay respect to those who lost their loved ones, but also crucial to reflect and analyze “whether the official responses to the attacks have been proper and effective.” In closing, he iterated that while “Europe has granted effective impunity to those who committed crimes in implementing the rendition policy” a “rethink is required to prevent this misjudged and failed counterterrorism approach from having a sad legacy of injustice.” For more information, please see: The Huffington Post – Rights Chief Slams EU for Cooperation in U.S. Renditions – 1 Sept. 2011 International Committee of the Red Cross – ICRC Report on the Treatment of Fourteen “High Value Detainees” in CIA Custody – 14 Feb. 2007 The Council of Europe – Alleged Secret Detentions and Un-Lawful Interstate Transfers of Detainees Involving Council of Europe Member States – 12 June 2006 _________________________________________________________________________ Germany, Italy in Legal Bout Over WWII Reparations September 15th, 2011 By Terance Walsh Impunity Watch Reporter, Europe THE HAGUE, Netherlands — Germany has turned to the United Nations’ highest court on Monday to repeal an order by an Italian court for Germany to pay reparations to Italian victims of Nazi war crimes in Italy during World War II. In 2004 a court in Italy ruled that Luigi Ferrini, an Italian civilian, was owed restitution because he was deported to Germany in 1944 and was forced into slave labor in the armaments industry. Ferrini initially filed his complaint against Germany in 1998. Since the Italian court ruled in his favor hundreds of relatives of victims of Nazi war crimes have filed complaints for enslavement, imprisonment, and killing.

210

 

In 2008 the Italian court decided to seize Villa Vigoni, an Italian-German cultural center on Lake Cuomo, to pay for the judgment. Germany initiated its case against Italy later that year. The gravamen of the dispute is Germany’s contention that the Italian court’s ruling violates German sovereign immunity. The Germans maintain that allowing national courts to have jurisdiction over other nations would lead to “legal disorder.” Such a system would open the door for complainants to “shop around for the most favorable national courts” to hear their grievances, Germany’s top legal adviser said. By issuing an order of restitution, Italy “failed to respect the jurisdictional immunity” Germany is due under international law. Instead of focusing on the individuals, the Italian court should be concerned with the broader legal implications of its ruling. Susanne Wasum-Rainer, Germany’s director-general of legal affairs, is concerned that if Italy were allowed to demand reparations “the consequences would be severe.” A decision favorable to Italy “would put in question and challenge open to challenges before domestic courts.” “What this case is not about is the Second World War, violations of international humanitarian law or the question of reparations,” Wasum-Rainer added. In response Italy asserts that the protection of human rights supersedes all other legal interests. No immunity, sovereign or otherwise, can be afforded in issues of crimes against humanity. “Germany… has adopted a stance that denies Italian victims access to justice,” said Salvatore Zappala, Italy’s legal representative to the UN. “States cannot absolve themselves from the responsibility of reparations for serious violations of humanitarian law.” “State sovereignty cannot be absolute,” added Giacomo Aiello, another member of Italy’s legal team. The Italian court held Ferrini’s rights higher than Germany’s interest in sovereign immunity because the crimes committed against Ferrini were “international crimes,” which took precedence over sovereign immunity. The Greeks stand behind Rome in this matter. Many of Greece’s citizens have similar claims against Germany and will be allowed to argue their case before the World Court. The Greeks’ claims arise from the killing of 214 Greek civilians in the village of Distomo at the hands of the Nazis in June 1944. To Miltiadis Sfountouris, the law suits are not about money. “It’s a moral thing, to find justice.” Sfountouris said his 78-year-old mother jumped from a window in Distomo to escape the Nazi death squads. She still lives in Distomo and has never received reparations. Even though courts have ruled in favor the victims’ families for war reparations, the victims have been blocked from confiscating German property in Greek territory to pay for the damages. As a result, no reparations have actually been paid for the massacre. In addition to individual Greek lawsuits, the Greek government will exercise its right to participate in the dispute between Italy and Germany. Prime Minister George Papandreou 211

 

announced the decision last January to his cabinet. ”We are all aware of the gravity and significance of this issue and of its special symbolism,” he said. He cited “obvious moral, legal and political reasons but also important issues of the highest national importance and the overall interests of the country at a specially crucial period for our homeland . . .. Our actions serve a self-evident debt to actively honor the memory of those that sacrificed themselves for this homeland.” Recently Germany paid almost $6 billion to over one million people or their relatives who were exploited by the Third Reich. The UN Court will be charged with weighing individual rights against the order and consistency of state sovereign immunity. Germany and Italy will argue their cases this week but the court is not expected to rule on the matter for several months. For more information please see: IOL News – Victims of Nazi War Turn to Court – 16 Sept. 2011 Expatica – Nazi Crimes Victims Before Italian Courts a “Last Resort” – 13 Sept. 2011 Tengri News – Germany, Italy Before UN World Court Over Nazi Reparations – 13 Sept. 2011 Deutsche Welle – Germany, Italy Face Off in Court Over Nazi War Crime Reparations – 12 Sept. 2011 The State – Germany, Italy at UN Court Over WWII Compensation – 12 Sept. 2011 Athens News – Greek Government to Back War Reparations Claim in ICJ – 12 Jan. 2011 _________________________________________________________________________ Atmosphere of Impunity Surrounds Disabled People, Says Commissioner of Human Rights October 22nd, 2011 By Alexandra Halsey-Storch Impunity Watch Reporter, Europe STRASBOURG, France – Earlier this week, Thomas Hammarberg, the Commissioner for the Council of Europe for Human Rights submitted a statement to the European Court of Human Rights, in which he urged the Court to hear a case concerning the maltreatment of a disabled person in Romania. “There is an atmosphere of impunity,” Hammarberg said, “surrounding abuses committed against people with disabilities.” This case has been filed by the Center for Legal Resources on behalf of Valentin Campeanu, a young man who suffered from a severe learning disability and was infected with the HIV Virus, which in Romania is considered a handicap. He died at the age of eighteen at the Poiana Mare Psychiatric Hospital, just one of the institutions where he spent his entire life. Under Article 34 of the United Nations Convention on the Rights of Persons with Disabilities, a petitioner “should claim to be a victim of a violation of one of the rights set forth in the Convention.” As such, the person who was “directly affected by the violation” 212

 

is the ideal petitioner to bring the lawsuit; however, the Court has not strictly enforced this provision and has, in some circumstances, allowed a close relative or legal representative of a deceased victim to commence an action for violating ones “right to life.” The case at issue differs from typical cases that the Court has heard in the past in that the namedplaintiff is deceased, and he is not survived by an heir or close relative, nor did he have a legal representative prior to death. Should this case be heard, it will be the first of its kind to be brought by a third party. Thus arises the question of whether or not the Center for Legal Resources, as a third, unrelated party may sue on behalf of Campeanu. There are at least two bodies of international law that are intended to protect the lives and rights of persons like Campeanu but have been, in many instances, ineffectual in deterring human rights abuses. The Universal Declaration of Human Rights–adopted by the United Nations in 1948—speaks generally on the issue, stating that, “everyone has the right to a standard of living adequate for the health and well-being of oneself and one’s family, including food, clothing, housing, and medical care.” More specifically, the United Nations Convention on the Rights of Persons with Disabilities (CRPD) was designed “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” As a policy measure, the Council of Europe 2006-2015 Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society is a plan aimed at bettering the welfare of disabled people. Despite the laws that are in place and the policy initiatives at work, the abuse of disabled people remains prevalent around the world. The abuse can be visible, while in other instances it is more subtle and clandestine. The spectrum of types of abuses runs the gamut from being denied employment opportunities, to being the subject of hate crimes; from receiving substandard education in segregated classrooms to physical and psychological abuse in the home. Throughout Europe, “thousands of people with disabilities are still kept in large, segregated and often remote institutions” often living in “substandard conditions, suffering neglect and human rights abuses.” Adults and children alike that have been institutionalized are often denied basic mental health and medical services and are physically and sexually abused by health care professionals. Children are chained to cribs, while adults are chained to their beds; children and adults alike can be severely underfed and malnourished. In some instances, there are “premature deaths” that go uninvestigated or even unreported. While all of these violations of basic human rights occur, disabled people are often unable to reach the very place that could give them relief from their misery: the court system. A study by Inclusion Europe, a non-governmental organization, found that “access to justice for people with intellectual disabilities is by no means guaranteed in many European countries.” The problem is widespread and deeply embedded in society. As such, Commissioner Hammarberg argues that the Center for Legal Resources—even though a third, unrelated party– should in-fact be permitted to bring a lawsuit on behalf of Campeanu. He states: “in exceptional circumstances [non-governmental organizations] should be allowed to lodge applications with the Court on behalf of victims, even in the absence of specific authorization.” Such organizations are necessary in order to expose 213

 

“human rights violations experienced by vulnerable persons and in facilitating their access to justice…” For more information please see: Council of Europe – Access to Justice for Persons with Disabilities – 18 Oct. 2011 Council of Europe – Third Party Intervention – 14 Oct. 2011 Cornell University ILR School – Justice, Rights and Inclusion for People with Intellectual Disability – 1 Jan. 2007 Council of Europe – Improving the Quality of Life for People with Disabilities – 5 Apr. 2006 Office of the United Nations High Commissioner on Human Rights – Convention on the Rights of Persons with Disabilities – 13 Dec. 2006 _________________________________________________________________________ UK Parliament Calls For Sanctions On Russia For Magnitsky Death March 9th, 2012 By Terance Walsh Impunity Watch Reporter, Europe LONDON, United Kingdom — The parliament of the United Kingdom unanimously passed a resolution urging sanctions against Russian officials for the egregious arrest and murder of Sergei Magnitsky. The resolution was proposed by Dominic Raab and calls on the government of the UK to freeze the assets and visas of sixty Russian officials who were complicit in Magnitsky’s death. The measure is labeled “Human Rights Abuses and the Death of Sergei Magnitsky.” The human rights issues surrounding Magnitsky arise from a $230 million tax fraud scheme perpetrated by tax agents who registered fake companies with Hermitage Capital. In 2008 Magnitsky uncovered the scheme. The Russian government, instead of punishing the wrongdoers, framed Magnitsky and blamed him for the scheme. The government subjected Magnitsky to abhorrent living conditions in prison and denied him urgent medical treatment. They allowed him to die on the floor of the Matrosskaya Tishina prison hospital while he waited for a doctor for over an hour. An investigation by Hermitage Capital leader William Browder uncovered the framing scheme and found that the true criminals were all enriched by the scheme while truth tellers were punished. Meanwhile the Kremlin has perpetuated the cover-up by seeking to prosecute Magnitsky posthumously. “All the suspects were cleared by Russian investigators. Some have been promoted, some decorated. In fact, the only people on trial are Magnitsky’s employer and Magnitsky himself, now the subject of Russia’s first ever posthumous prosecution,” Raab said. The bill passed by the UK Parliament is meant to support the truth Magnitsky worked for and help those fighting for human rights improvements in Russia. 214

 

“The UK Parliament has spoken overwhelmingly in solidarity with Sergei Magnitsky and the other brave voices fighting for the rule of law and reform in Russia. The government should now heed its will and come forward with a bill to impose targeted sanctions on those responsible for torture, assassination and other crimes against those struggling to promote or defend the most basic freedoms we enjoy here,” said Mr. Raab, MP. Other Members of Parliament have expressed enthusiasm over the measure. “I am delighted that the House of Commons has unanimously expressed its will that the UK should join other government around the world in refusing visas and travel rights into the UK for those responsible for the persecution and death of Sergei Magnitsky,” said Sir Malcom Rifkind, MP. Alistar Burt, the UK’s Foreign Office Minister, said that he does not oppose the bill, but it is the policy of his office not to comment on individual cases. Mr. Burt did mention, however, that “[t]he death of Sergei Magnitsky serves as a stark reminder of the human rights situation in Russia, and questions about the rule of law there.” The measure calling for sanctions comes on the heels of Vladimir Putin re-taking the Russian presidency. Parliament declared its intent to shed light on Russian human rights abuses prior to debating the Magnitsky sanctions bill. Former foreign secretary William Millband stated, “[t]his is not about Russia-bashing but support for a Russia fit for the history of that country.” The measure calls for sanctions for those who“(a) were involved in the detention, physical abuse or death of Sergei Magnitsky; (b) participated in efforts to conceal the legal liability for the detention, abuse or death of Sergei Magnitsky; (c) committed the frauds discovered by Sergei Magnitsky; or (d) are responsible for extrajudicial killings, torture or other gross violations of human rights committed in Russia or any other country against any individual seeking to obtain, exercise, defend or promote basic and internationally recognised human rights, including those set out in the International Covenant on Civil and Political Rights 1966.” While the debate in Parliament was ongoing Russian officials objected to any proposed sanctions by the British government. The Russian ambassador to the United Kingdom sent written objections to Member so Parliament telling them of errors in their proposed sanctions. Mr. Raab responded “It’s bad enough Mr Putin’s regime corrupting elections in Russia. But it adds insult to injury for him to send envoys to try to subvert democracy in this country.” The United States and the Netherlands have both imposed visa bans against Russian officials involved in Magnitsky’s death. Russia responded by banning certain American and Dutch officials, but none of the countries have actually carried out the ban.

215

 

The United States Congress is currently considering a measure similar to the one urged by Parliament. The Obama administration has shown no urgency to pass the measure, however, likely because of the provision in the bill that requires sanctions for any official associated with “gross violations of human rights.” This proposition would drastically change the US’s human rights policy. Last month the European Parliament’s delegation on relations with Russia requested that European Union member nations take action against Russia in response to the Magnitsky affair. Raab has called on the UK government to pass the measure before the Queen’s speech, scheduled to take place on May 9th. For more information please see: The Guardian – At Last, The British Parliament Demands Action Against Corrupt and Murderous Russian Officials – 8 Mar. 2012 Law and Order in Russia – British Parliament Votes Unanimously In Favor Of Magnitsky Sanctions – 8 Mar. 2012 Radio Free Europe/Radio Liberty – U.K. Lawmakers Urge Sanctions Against Russians Over Magnitsky Death – 8 Mar. 2012 RIANOVOSTI – British MPs Urge Magnitsky List Sanctions – 8 Mar. 2012 The Guardian – Russia ‘Tries To Gag British Parliament’ – 7 Mar. 2012 BBC – UK MPs To Stage Debate Over Russia’s Human Rights Record – 28 Feb. 2012

216

 

_________________________________________________________________________

MIDDLE EAST DESK
_________________________________________________________________________ Israel Arrests Pro-Palestinian Activists, Dozens More Detained July 10th, 2011 By Zach Waksman Impunity Watch Reporter, Middle East TEL AVIV, Israel – On Friday, hundreds of pro-Palestinian activists began to fly into Tel Aviv’s Ben-Gurion International Airport. The literal mass flight, nicknamed the “flightilla” in reference to a flotilla of aid ships that was denied access to Gaza, was intended to protest the Israeli government’s tendency to bar such people from entering the country. As of Saturday, six activists, all Israeli citizens, have been arrested by national police, and over 100 others, mostly from Europe, remain in Israeli custody, awaiting deportation to their home countries. The activists intended to take part in a “Welcome to Palestine” campaign, which was first announced in Paris on March 9 in response to a call from 15 Palestinian civil society organizations on the West Bank. During the campaign, they would “pay a visit to Palestinian families, share their daily life for a week, visit the towns, villages and refugee camps, discover the difficulties encountered by their inhabitants, [and] also their culture and expectations.” Because Palestine has no airport, they had no choice but to fly into BenGurion. Though many who wish to visit Palestine lie about their purpose for coming in order to avoid trouble, participants in the initiative stated their intentions to the French Foreign Office, who then forwarded that information to Israeli authorities. Despite clearly stating the group’s peaceful purpose to Israel months in advance, the country’s immigration department considered participants to be a “security threat.” Believing this to be the case, Prime Minister Benjamin Netanyahu began preparations for their arrival. Hundreds of security personnel were deployed to the airport. The six who were arrested had caused a disturbance in the arrivals area of Terminal Three. They also held up signs that read “Welcome to Palestine.” According to police spokesman Micky Rosenfeld, “Five males and one female are being questioned.” As another part of the preparations, the Interior Ministry sent airlines in other countries a list of hundreds of names of people, Israel said were “pro-Palestinian radicals” who intended to create chaos at Ben-Gurion. Those who arrived in Israel would be refused entry, so the airlines were asked not to let them on board their planes. According to Foreign Ministry spokesman Yigal Palmor, the no-fly list was compiled by following the organizers’ websites and members’ social networking. “We did not need the Mossad,” he said. “It was all out there in the open.” The decision was not met with kind words from the would-be activists. One of the more notable incidents happened at Paris’s Charles de Gaulle Airport, where 50 people planned 217

 

to board a Lufthansa flight, but were banned from boarding. They then gathered in the terminal and repeatedly yelled “Boycott Israel,” while police observed. “Charles de Gaulle Airport is under Israeli occupation. We are peaceful people and have no interest in causing disorder at Ben-Gurion Airport,” Olivia Zemour, leader of one of the organizations that helped put the “flightilla” together, told Israel Radio. A similar scene took place in Geneva, where 30 people were denied permission to board. Those who did make it Tel Aviv did not fare much better. At least two planes were diverted to a different terminal, where suspected activists were taken to a holding area for questioning. Israel believed it was justified in detaining and denying entry to the activists. Interior Minister Eli Yishal gave credit to the Immigration and Population Authority for preventing their entry. “We will take a firm hand against anyone disregarding [our] laws, and like any other sovereign state, we will use any means at our disposal to prevent people intent on breaking the law from entering the country,” he said. Prime Minister Netanyahu added that every country had the right to prevent the entry of potential “provocateurs.” Despite the setback, organizers still claim victory. At a news conference in Bethlehem, Palestinian organizer Fadi Kattan said that he was “pleased – sadly pleased” with the Israeli reaction. In his point of view, it revealed the country’s strong anti-Palestinian policies. Laura Durkay, an American activist who was being held in a pre-interrogation area at BenGurion with at least 30 other people, was also satisfied. “What we want is to get into Palestine, but if that’s not going to happen, then the longer we stay here, the more the media will keep paying attention to our story,” she said. “We want to show how the Israeli government treats people trying to travel to Palestine.” For more information, please see: Jerusalem Post – Pro-Palestinian Activists Plan Week of Protests in West Bank – 10 July 2011 Ma’an News Agency – Israel Deports Two Activists, 118 Still Held – 10 July 2011 Al-Jazeera – Israel Clamps Down on Fly-in Protest – 9 July 2011 Jerusalem Post – Yishai Commends ‘Flightilla’ Security Forces at B-G Airport – 9 July 2011 Arutz Sheva – Six Expelled at Airport; 200 Stopped Abroad – 8 July 2011 New York Times – Israel Blocks Air Travelers to Palestinian Conference – 8 July 2011 Arutz Sheva – Pro-PA ‘Fly-In’ Stymied in Europe – 7 July 2011 Alternative Information Center – Israel Reacts Hysterically to Welcome to Palestine Initiative – 6 July 2011 Bienvenue en Palestine – Press Release, March 9, 2011 – 9 March 2011 _________________________________________________________________________

218

 

Amnesty International Reports Patients Tortured in Syrian Hospitals October 30th, 2011 By Carolyn Abdenour Impunity Watch Reporter, Middle East DAMASCUS, Syria – On Tuesday, 25 October, Amnesty International issued a report that claims security forces and the medical staff in government-run hospitals in Baniyas, Homs, Tell Kalakh and a military hospital in Homs subjected patients to torture and other illtreatment. The report entitled “Health Crisis: Syrian Government Targets the Wounded and Health Workers” alleges the government converted hospitals into instruments of repression and targeted patients and medical staff members to quash anti-government opposition. The report notes the government directed those injured from anti-government activities to receive treatment at the military hospital where they considered patients detainees and held them incommunicado. The medical staff also denied care to some of the patients injured in uprising-affiliated incidents, a gross violation of medical ethics. Amnesty researcher Cilina Nasser reports security forces appear to have free reign of the hospitals. The report also claims security forces obstructed ambulances with a patient en route to the hospital and interrogated patients while in the ambulance. Nasser found it disturbing that people reported feeling safer not treating their major wounds rather than seeking treatment at a proper medical facility. The report adds injured people prefer “to seek treatment either at private hospitals or at poorly equipped makeshift field hospitals.” Furthermore, since the Ministry of Defense controls the blood bank, the hospital must deliberate to contact the blood bank for an injured patient. A medic at a private hospital stated if they contact the Central Blood Bank, “the security would know about him and we would be putting him at risk or arrest and torture, and possibly death in custody.” Doctors protested hospital raids and attacks, but hospital workers also face arrest and torture. Ahmed, a doctor from Homs, reported many patients disappeared from his hospital. Moreover, he saw a nurse beat a 14-year-old patient with bullet wounds. After he alerted the hospital manager, the nurse told officials Ahmed was a member of an Islamic organization. Rather than following the officials’ request to visit the security building, Ahmed chose to leave Syria. The government denies torturing its opponents; however, President Assad has promised reform. His critics do not believe the reforms will go far enough, if the government implements them at all. During a hospital raid in September, security forces failed to find an alleged opposition armed field commander in Homs. They arrested eighteen wounded people; one of these patients was unconscious and needed his ventilator detached before removing him from the hospital. 219

 

For more information, please see: BBC – Syria ‘Using Hospital for Torture’ – Amnesty – 25 Oct 2011 Dalje – Syria Accused of Hospital Repressions – 25 Oct 2011 Haartez – Amnesty: Syria Regime Using Torture in Hospitals to Repress Opposition – 25 Oct 2011 Now Lebanon – Amnesty Condemns “Climate of Fear” in Syrian Hospitals – 25 Oct 2011 _________________________________________________________________________ Saudi Blogger Arrested in Malaysia for Tweets about the Prophet Mohammed February 10th, 2012 By Tyler Yates Impunity Watch Reporter, Middle East RIYADH, Saudi Arabia — The Malaysian police have arrested a Saudi blogger who was fleeing Saudi Arabia following calls for his execution, stemming from comments made on Twitter thought to be insulting to the Prophet Mohammed. Hamza Kashgari was hoping to gain political asylum in New Zealand when he was intercepted upon his arrival at Kuala Lumpur International Airport. A spokesperson for the Malaysian police confirmed that they had detained the 23-year old blogger. “This arrest was part of an Interpol operation which the Malaysian police were a part of,” the spokesperson said. No details were announced on whether Kashgari would be extradited to Saudi Arabia. Even though the two countries do not have an explicit extradition treaty, Kashgari could still be extradited under other bilateral security agreements between the States. Clerics and locals in Saudi Arabia have called for Kashgari’s execution based upon three comments he made on Twitter on the Prophet Mohammed’s birthday. The tweets depicted a fictitious conversation between Kashgari and the Prophet: “On your birthday, I find you wherever I turn. I will say that I have loved aspects of you, hated others, and could not understand many more,” one tweet read. Kashgari later deleted the tweets after he received over 30,000 responses within a day of posting. The online reaction to the tweets included a series of tweets with the hashtag #HazmaKashgari, YouTube videos (one of which including his home address), and a Facebook group with over 12,000 members entitled “The Saudi People Demand the Execution of Hazma Kashgari.” Some in Saudi Arabia feel that Kashgari has been made a scapegoat for a larger conflict between the ultraconservatives and liberals in the majority Muslim nation. The incident once again highlights the impact of Twitter and related social networking sites in the Middle East. The free forums allow for debate and discussion, but it can also lead to scandal. 220

 

Saudi Arabia does not have a written set of criminal laws, however blasphemy has been recognized as a crime punishable by execution under Saudi Arabia’s strict interpretation of Islamic sharia law. It is not a capital crime in Malaysia. Human Rights Watch and other human rights organizations are calling on Malaysia not to send Kashgari back to Saudi Arabia. “If Kashgari is not presumed innocent, he can hardly expect a fair trial if returned to Saudi Arabia,” said Christopher Wilcke, a senior Middle East researcher at Human Rights Watch. “Malaysia should save him from any travesties of justice and allow him to seek safety in a country of his choice.” Due to its role in Kashgari’s arrest, Interpol has been accused of abusing its powers. “If an Interpol red notice is the reason for his arrest and detention it would be a serious abuse of this powerful international body that is supposed to respect basic human rights (including to peaceful free speech) and to be barred from any involvement in religious or political cases,” said Jago Russell, the chief executive of the British charity Fair Trials International. He went on to call on Interpol to uphold its obligations to fundamental human rights and to stay out of this case “which is clearly of a religious nature.” Interpol, which has 190 member countries, has a series of colored notice systems that police forces around the world use to pass on requests for help. Last year Interpol was accused by Fair Trials International of allowing the system to be abused for political purposes when it issued a red notice for the arrest of the Oxford-based leader of an Asian separatist movement, Benny Wenda, who has been granted asylum and has lived in the UK since 2003. Interpol has not commented on the arrest of Kashgari. For more information, please see: Al Jazeera – Malaysia Arrests Saudi Blogger Over Tweets – 10 Feb. 2012 Guardian – Interpol Accused After Journalist Arrested Over Muhammed Tweet – 10 Feb. 2012 HRW – Malaysia Don’t Send Saudi Back – 10 Feb. 2012 New York Times – Malaysia Detains Saudi Over Twitter Posts on Prophet – 10 Feb. 2012 Washington Post – Saudi Blogger’s Tweets About Prophet Muhammad Stir Islamists to Call for His Execution – 09 Feb. 2012 _________________________________________________________________________

221

 

Red Cross Denied Access to Civilians as Shelling Continues in Syria March 5th, 2012 By Adom M. Cooper Impunity Watch Reporter, Middle East DAMASCUS, Syria – Syrian security forces resumed their attacks on the city of Homs, causing more civilian deaths and preventing relief access to the wounded. On Sunday 04 March 2012, activists reported that a bombardment came to Syria’s third-largest city of approximately one million residents as China presented a proposal to end the violence in the country. It called for an immediate ceasefire and dialogue between all of the parties but stood firm against any type of intervention by outside forces. In addition to Homs, the Syrian security forces also descended upon the rebel-dominated city of Rastan on Sunday 04 March 2012. According to the London-based Syrian Observatory for Human Rights, four children were said to be among seven civilians killed in the shelling. The victims included as many as six family members when a rocket crashed into their home, causing the building to collapse. The focal point of the attacks by security forces has been the western Homs neighborhood of Baba Amr, where the situation has been described as “catastrophic.” On Saturday 03 March 2012, there were reports of power outages, shortages of food and water, and no medical care for the sick and wounded. The Red Cross has desperately been trying to gain access to the city for three days, attempting to deliver aid and supplies to those in need. The closest that the organization has come to assisting Baba Amr is handing out food and blankets to those fortunate enough to have the ability to flee the city to nearby areas. Syrian officials informed the Red Cross that Baba Amr had to be cleared of booby traps before they could enter the area. But activists reported that troops were carrying out reprisal attacks around the city, causing more death and violence at the expense of thousands of civilians. While the attacks continue to occur, the bodies of two foreign journalists who lost their lives for the sake of letting the world know what was happening on the ground left Syria and were headed to France. The bodies of Remi Ochlik and Marie Colvin were placed on an Air France flight from Damascus on the evening of Saturday 03 March 2012. Rebels from the Free Syrian Army withdrew their forces from Baba Amr late last week, as the weeks of shelling from government forces made it increasingly difficult for the rebels to maintain their positions. The Syrian government gave the Red Cross permission to access Baba Amr but once the help actually arrived in the form of a convoy, the government refused to allow it to enter the city. BBC correspondent Jim Muir, reporting from Lebanon, stated that this is when the Red Cross decided to assist those who were lucky enough to flee Baba Amr. Muir also stated that the ICRC had dispatched a 15-man team to the Abil area, a southern part of Baba Amr. ICRC spokesperson Hicham Hassan shared these words with Reuters about the developing situation: “The plan is to continue to the neighborhoods of Inshaat and Tawzii in order to 222

 

assist local populations and families displaced from Baba Amr. We really don’t know how many people are still in there. It’s all a bit of a mystery to us.” The Syrian state television has been broadcasting pictures of deserted streets laden with debris, being careful not to display any strife on the part of civilians. There have been a multitude of unconfirmed reports of revenge killings and summary executions by Syrian forces in Baba Amr. Opposition activists believe that a government-wide cover up is responsible for the delay in bringing these reports to public attention. The reports detail mass arrests of males over the age of 11, with the local cooperative building being transformed into a detention facility. Another report detailed that truck full of bodies was seen driving away from Baba Amr. Sunday Times photographer Paul Conroy, who fled Syria after being wounded while working in Homs, told the BBC that what he saw on the ground in Baba Amr classified as “systematic slaughter.” “I’ve done a fair few wars, I’ve never seen anything on this level” stated Conroy. Activists have reported that approximately 7,500 people have lost their lives since the demonstrations and protests against President Bashar al-Assad began almost a year ago. The government had repeatedly and staunchly blamed “terrorists and armed gangs” for the violence. Regardless of who the government chooses to throw the blame on, the people of Syria continue to pay a fatal toll as each day goes by. The international community continues to debate the appropriate course of action and each day seems to bring a new idea to the table. The proposal by China and Turkey strictly rules out the use of foreign intervention, a theme that seems so necessary at this point but will not be used. Turkish Foreign Minister Ahmet Davutoglu said that the lack of consensus among the international community has only emboldening the Syrian government to proceed with its crackdown. Davutoglu stated that the gravity of the killing closely resembles the bloodshed of the Balkans war of the 1990s. He described the actions of al-Assad’s regime as “crimes against humanity.” And these crimes will only continue while the rest of the world watches and reports on the situation, instead formulating and agreeing on a plan to end it. For more information, please see: Ahram – China Demands End To Violence As Syria Blocks Aid – 04 Mar. 2012 Al-Jazeera – Syrian Forces Renew Assault On Homs – 04 Mar. 2012 BBC – Syria Crisis: Red Cross Pushes For Baba Amr Access – 04 Mar. 2012 CNN – Rockets Fall On Syrian City of Rastan, Opposition Activists Say – 04 Mar. 2012 The Guardian – Syria: Red Cross Blocked Again From Baba Amr – 04 Mar. 2012 NYT – Bearing Witness in Syria: A Correspondent’s Last Days – 03 Mar. 2012

223

 

_________________________________________________________________________ NORTH AMERICA & OCEANIA DESK _________________________________________________________________________ No immunity for Rumsfeld in suit regarding tortured U.S. citizens August 13th, 2011 By Brianne Yantz Impunity Watch Reporter, North America CHICAGO, United States – Two American citizens can sue former Defense Secretary Donald Rumsfeld for torture, the Seventh Circuit Court ruled on Monday. The two men pursuing the lawsuit, Donald Vance and Nathan Ertel, allege that U.S. Forces tortured them for months after suspicions of illegal activity arose against their employer, a private Iraqi company called Shield Group Security. Court records revealed that in 2005 Vance and Ertel had begun to suspect that their employer was bribing Iraqi officials and that some employees were engaging in illegal weapons trafficking. Shortly thereafter the two men became FBI informants. In April of 2006, however, Shield Group Security confiscated their credentials and they were left trapped in the Red Zone of war-ravaged Iraq. After calling their government contacts, Vance and Ertel were assured that U.S. Forces would rescue them. Instead, the two men were arrested and thrown in confinement. According the Herald Sun, the two allege that while detained they were subjected “to violence, sleep deprivation and extremes in light and sound.” It was further reported by the Chicagoist that the two men were “often deprived of food and water, walled, denied medical care and subject to various forms of psychological torture.” Vance and Ertel were eventually released; the two men were dropped off at an airport in Baghdad. They were never charged or designated as security risks. They later decided to sue Rumsfeld as well as other unnamed U.S. officials. Immediately Rumsfeld sought to dismiss the case, arguing he “had immunity for actions taken while working as defense secretary, and that U.S. citizens [could not] sue for violations of their rights that occurred in war zone,” BBC News reported. However, according to BBC News, the Seventh Circuit reasoned Rumsfeld did not have immunity because the “plaintiffs [had] alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention.” The Seventh Circuit’s 2-1 decision affirmed the ruling of the lower district court, which also found that Rumsfeld lacked immunity. 224

 

In an interview quoted by the Herald Sun, Vance’s lawyer, Michael Kanovitz, said of the Court’s decision, “it’s important because what the court does here is it affirms the very basis of constitutional doctrine.” He further commented that absolute discretion should not be given to the executive branch. Meanwhile, Rumsfeld’s lawyer, David Rivkin, quickly denounced the ruling, arguing “it saps the effectiveness of the military, puts American soldiers at risk, and shackles federal officials who have a constitutional duty to protect America,” Courthouse News Service reported. Although whether Rumsfeld will be found accountable remains to be seen, the Seventh Circuit’s decision comes a week after a district judge in Washington ruled that a former American military contractor, who also alleges he was tortured in Iraq, could sue the former defense secretary. For more information, please see: Chicagoist – Court Rules Citizens Allowed to Sue Rumsfeld for Torture – Aug.10, 2011 Courthouse News Service – U.S. Citizens Can Sue Rumsfeld for Torture – Aug. 9, 2011 Herald Sun – Donald Rumsfeld can be Held Liable for Alleged Torture, Court Rules – Aug. 9, 2011 Wall Street Journal – Donald Rumsfeld Faces Another Torture Lawsuit – Aug. 9, 2011 BBC News – ‘Tortured’ US citizens allowed to sue Donald Rumsfeld – Aug. 8, 2011 _________________________________________________________________________ Significant Victory for Indigenous Women in Military Rape Cases in Mexico August 20th, 2011 By Brianne Yantz Impunity Watch Reporter, North America MEXICO CITY, Mexico – For more than nine years, two indigenous women who were raped by soldiers in the southern state of Guerrero have been fighting for justice. Since Inés Fernández Ortega and Valentina Rosendo Cantú were raped in 2002, both women have been relentless in their pursuit, going so far as to challenge the Mexican authorities and its military. Ortega and Cantú, both Me’phaa Indians, were raped in separate incidents, but together sought to punish those responsible. Earlier this month, the decision was made to prosecute the soldiers charged with the rape of both Ortega and Cantú in civilian court, an act hailed by Amnesty International as a “significant step for those seeking justice for human rights violations committed by the military in Mexico.” According to Fox News, in August of 2010, the Inter-American Court of Human Rights (IACHR) ruled that the cases by tried in a civilian court. In a press conference last month, Cantú expressed her desire to see the IACHR’s decision upheld. 225

 

Finally, on August 12, a year after the IACHR decision was handed down, the Mexico’s Military Prosecutor’s Office declared that the cases would be tried in civilian court as it lacked jurisdiction in cases involving accusations of human rights violations. This ruling comes after months of increasing pressure on the Mexican government to investigate the growing reports of abuse by Mexican soldiers. The decision is not only a win for Ortega and Cantú, but for Mexico as a whole. Symbolically, it demonstrates greater civilian control over the armed forces. According to Amnesty International, Vidulfo Rosales, a human rights lawyer at Tlachinollan Mountain Human Rights Center in Guerrero, stated, “for us, this is a significant advance, as civil society has constantly fought for these cases to be transferred into the civilian justice system.” However, Rosales expressed concerns, particularly that the decision was limited in its reach. “We’re worried that there’s a margin for impunity, for those responsible to be exonerated.” Others concerned with the future of human rights in Mexico shared similar worries. The Robert F. Kennedy Center for Justice and Human Rights expressed its opinion that “the decision by the Mexican government to transfer the two cases to civilian federal jurisdiction is a positive development, but bringing the perpetrators to justice and ensuring that future cases follow this precedent is crucial.” While the decision to transfer the cases to civilian court have been commended by Amnesty International and other human rights organizations, there is still a long road ahead to ensure justice is served for Ortega, Cantú, and the countless number of other victims of military-related human rights abuses across Mexico. For more information, please see: Amnesty International – Indigenous Women Win First Step in Fight Over Military Rape Case in Mexico, Says Amnesty International – Aug. 17, 2011 Latin American Herald Tribune – Mexican Army Hands Over Rights Cases to Civilian Prosecutors – Aug. 17, 2011 RFK Center – Mexico: Nine Years Later, Cases of Indigenous Women Raped and Tortured by Soldiers and Transferred Out of Military Jurisdiction – Aug. 17, 2011 Fox News – Mexican Women Raped by Soldiers Demand Justice – July 29, 2011 _________________________________________________________________________ Troy Davis Faces Execution for the Fourth Time Human Rights Groups Seek Clemency September 9th, 2011 By Brittney Hodnik Impunity Watch Reporter, North America WASHINGTON, United States – With September 21 quickly approaching, Troy Anthony Davis’s friends and family are doing all that they can to halt his execution. Davis 226

 

has been on death row since 1991 for allegedly killing off-duty police officer, Mark MacPhail. Since his trial, seven of the nine witnesses have recanted their guilty statements, admitting they are not sure who killed MacPhail. Now, Amnesty International, Human Rights Watch, and other human rights groups are lobbying to delay and vacate Davis’s death sentence, scheduled for September 21, 2011. On August 18, 1989, Officer MacPhail went to assist Michael Young, a homeless man who was being attacked in the parking lot of a Greyhound Bus Terminal/Burger King Restaurant, according to Savannah Now News. When he got to Young’s side, MacPhail was shot twice with a .38-caliber pistol, once in the heart and once in the face. MacPhail died from those injuries. Troy Davis was subsequently tried in the Chatham County Superior Court. According to Savannah News Now, it took the jury only two hours to convict Davis of the murder and recommend the death penalty. There is no physical evidence linking Davis to the crime. Police never even found the murder weapon. Nine witnesses testified against Davis, stating that he was guilty. Seven of the nine witnesses have since recanted their statements, saying that they are not sure who killed MacPhail. Furthermore, three witnesses now say that another man, Sylvester “Redd” Coles has confessed to the crime, according to the Atlanta Journal-Constitution. Davis still maintains his innocence. Amnesty International reports that since 1991, when Davis was first put on death row, more than 90 prisoners have been released from death rows around the United States. A number of states have recently acted to abolish the death penalty including New Jersey, New Mexico, and Illinois. Some believe that there are racial undertones playing a significant role in this case; Davis is an African American man, MacPhail a white cop. Human Rights Watch disapproves of the death penalty in general, for its inherent cruelty and finality. Amnesty International’s USA researcher, Rob Freer said, “Given the doubts that persist in this case, the Board cannot in good conscience allow this execution to go ahead.” Davis’s friends and family have created a website to keep the public informed of his struggle. The website is entitled: “Troy Anthony Davis: An Innocent Man Facing Execution in Georgia.” On the website, readers can find letters from celebrities and political figures supporting his cause. In 2007, the Georgia Board of Pardons and Parole pardoned Davis less than 24 hours from execution because there needs to be “no doubt as to the guilt of the accused,” according to Amnesty International. In 2008, the Supreme Court granted Davis a stay of execution just two hours before he was scheduled to be put to death. The Court mandated that the federal district court look at the case again; the district court held that Davis “failed to show his actual innocence,” according to CNN. After a federal hearing last year, Judge William Moore ruled that “Mr. Davis is not innocent” and that he has not shown “by clear and convincing evidence that no reasonable 227

 

juror would have convicted him in the light of new evidence,” according to Amnesty International. Furthermore, Judge Moore said that Davis’s evidence was “too general” and provided “[nothing] more than smoke and mirrors,” according to CNN. Troy Davis’s most recent appeal was to the United States Supreme Court. Davis requested more time to prove his “actual innocence” as reported by CNN. The Supreme Court however, refused his request without comment. According to CNN, many prominent figures have supported Davis’s cause, including former President Jimmy Carter, actress Susan Sarandon, Pope Benedict XVI, and former Archbishop Desmond Tutu. All of these figures have rallied to help Davis get a new trial. The State Board of Pardons and Paroles has already scheduled an appointment for September 19 to give Davis’s legal team one last chance at delaying the execution, reported Savannah Now News. Without a grant of clemency, the state of Georgia will execute Troy Davis on September 21, 2011. For more information, please see: Amnesty International – Georgia Sets Execution Date for Troy Davis – 8 Sept. 2011 SavannahNow.com – Troy Davis Execution Date Set for Sept. 21 – 8 Sept. 2011 Atlanta Journal Constitution – Parole Board to Again Hear Troy Anthony Davis Case – 7 Sept. 2011 CNN.com – Human Rights Group Protests Imminent Execution of Georgia Man – 7 Sept. 2011 Human Rights Watch – Letter from HRW to Georgia Governor, Sonnie Perdue and Georgia State Board of Pardons and Paroles – 20 Oct. 2008 _________________________________________________________________________ Australia to Deport First Afghan Asylum Seeker November 14th, 2011 By Brittney Hodnik Impunity Watch Reporter, Oceania CANBERRA, Australia – Australia continues its efforts to thwart the ever-increasing influx of asylum-seekers into the country. Even amid tragedy, Prime Minister Julia Gillard stands firm on her commitment. Today, Australian authorities intercepted another vessel carrying 93 people, all seeking asylum. In addition, Australia is about to forcibly deport the first failed Afghan asylum seeker even amidst fears he will be killed upon returning home. Ismail Mirza Jan, a 26 year old who fled Afghanistan about 10 years ago, is scheduled to be deported later this week. The Australian Broadcasting Company (“ABC News”) reports that he is currently in a maximum-security location at the Villawood Immigration Detention Centre in Sydney. His asylum claim was rejected, and thus, he will be sent back to Afghanistan. 228

 

Jan originally fled Afghanistan in 2001 after the Taliban killed his father. Jan has also failed to obtain asylum in Ireland and Britain. He told ABC News that he is just “in search of a place that [he] can be safe . . . .” Australia, Afghanistan, and the United Nations High Commissioner for Refugees signed a memorandum understanding in January, according to ABC News. This agreement, as reported by the Sydney Morning Herald, allows Australia to deport individuals. “Where an Afghan refuses to return voluntarily, this agreement stipulates that the Afghan government will readmit its nationals who are not entitled to protection in Australia,” said Chris Bowen, representative for the Immigration Minister. Jan fears that he will be killed if he returns to Afghanistan. He told ABC News “If I go there, I will be dead in my country. I have no one there to protect me . . . I have no friends, no family there.” Immigrants seeking asylum have become a regular happening in Australia. Since the 2010 election, 100 vessels have arrived or been intercepted in Australia; and the problem is getting worse. Perth Now reports that last year, 50 asylum-seekers were found on each vessel on average, and this year, that number has increased to 70 per boat. Perth Now further reports, “More and more people getting on these boats is only increasing the risk of this journey, which of course concerns all Australians.” The most recent group that was intercepted will be transported to Christmas Island for identification, security, and health screenings. The Sydney Morning Herald reports that Jan will be charged $32,782 for his escorted deportation. If he is deported as scheduled this week, he will likely be the first of many rejected Afghan asylum-seekers forcibly sent back to the country they fled, fearing for their lives. For more information, please see: Sydney Morning Herald – Afghan Asylum Seeker to be Forcibly Deported – 15 Nov. 2011 ABC News – Australia to Deport Afghan Asylum Seeker –14 Nov. 2011 Perth Now –Asylum Boat with 93 on Board Intercepted – 14 Nov. 2011 The Washington Post – Australian PM Says She is Committed to Deterring Asylum Seekers After Fatal Boat Capsizing – 2 Nov. 2011 _________________________________________________________________________ Guatemala Sentences Former Soldier to 6,060 Years in Prison March 13th, 2012 By Brittney Hodnik Impunity Watch Reporter, North America GUATEMALA CITY, Guatemala – As previously reported, Guatemala began trying former dictator General Efrain Rios Montt for genocide and other crimes against humanity. Other high-ranking soldiers and officials are now facing the same fate. The 17-month 229

 

period between 1982 and 1983 claimed the lives of nearly 250,000 people. Now, nearly 30 years later the people in charge of these killings are being brought to justice. According to The Associated Press, Pedro Pimentel Rios is the fifth former special forces soldier to be sentenced for his participation in the “Dos Erres” massacre in 1982. Rios was sentenced to 6,060 years in prison – 30 years for each of the 201 people slaughtered in the massacre, plus 30 years for crimes against humanity. All five of the former soldiers were sentenced to 6,060 years or more. Rios is a 54 year old former instructor at a Guatemalan training school for elite military forces. He moved from Guatemala to Santa Ana, California where he worked in a sweater factory until finally being detained by immigration authorities in May 2010, according to The Associated Press. The United States extradited him to Guatemala the following year. According to CNN, Judge Irma Valdez said Monday that the evidence presented by the prosecution along with testimonies from witnesses proved Pimentel was involved in the killings. Maria Tulia Lopez Perez is just one of the many survivors of the three-decade long civil war. She still suffers back pain from the torture she endured in 1985, according to BBC News. She currently works with other survivors who come to her suffering from depression, insomnia, and post-traumatic stress; she helps them remember that they are not alone, reports BBC News. The ruling is highly symbolic, according to The Guardian, because under Guatemalan law, criminals may only serve 50 years. This ruling comes as Guatemala seeks to clean up atrocities from the civil war. As for Efrain Rios Montt, his defense lawyers say that he did not control battlefield operations while he was dictator, according to The Guardian. He faces charges of genocide and he is accused of ordering the killings of at least 1,700 innocent Mayan people during his reign. Overall, more than 200,000 people were killed or “disappeared” during the 36-year civil war, where there were 669 documented massacres. Other officials will likely face the same consequences as Rios, receiving more than 6,000 years in prison, as Guatemala tries to bring some closure and justice to the victims of the civil war. For more information, please see: Associated Press – Guatemalan gets 6,060-Year Sentence in Massacre – 13 Mar. 2012 BBC News – Healing Guatemala’s Emotional Scars from the Civil War – 13 Mar. 2012 CNN – 6,060 Years in Prison for Former Guatemalan Soldier – 13 Mar. 2012 The Guardian – Guatemalan Ex-Soldier Jailed for 6,060 Years Over Dos Erres Massacre – 13 Mar. 2012

230

 

_________________________________________________________________________ SOUTH AMERICA DESK _________________________________________________________________________ Uruguayan Peacekeepers in Haiti Under Investigation for the Physical and Sexual Assault of a Local September 5th, 2011 By Paula Buzzi Impunity Watch Reporter, South America MONTEVIDEO, Uruguay – Several Uruguayan troops on a U.N. peacekeeping mission in Haiti are being investigated after a video captured on a cell phone revealed what appears to be a young local man being physically and possibly sexually assaulted by at least five Uruguayan troops. The video, which lasts approximately one minute, shows a half-naked man of approximately 18 years of age being pinned down and physically assaulted on a mattress by several Uruguayan troops in camouflage. The video was filmed at a U.N. base in PortSalut and was recently posted on the internet. Kieran Dwyer, U.N. peacekeeping spokesman, in a statement said that the U.N. acted immediately after first hearing about the incident and has launched an urgent investigation. Uruguayan Defense Minister, Eleuterio Fernandez Huidobro, confirmed that the National Defense Ministry has also opened up an investigation and is ordering the return of the Armed Forces members from Haiti as well as the replacement of the Chief of the Naval Contingent. The navy commander in charge of the troops involved has also been recalled to Uruguay. According to a statement made by Uruguayan Defense Ministry, if found guilty, those involved could face dishonorable discharge from the navy and lose their retirement rights. Haitian President Michel Martelly, in a statement released late on Sunday, stated that: “The Presidency vigorously condemns this act which revolts the nation’s conscience and awaits a detailed report establishing the exact facts and circumstances.” Martelly has urged that a meeting be set up between Haitian authorities and U.N. mission leaders to discuss ways to prevent any more acts of abuse. U.N. began the peacekeeping mission in Haiti in 2004 after former President Jean-Bertrand Aristide was forced into exile. Tensions between the locals and the U.N. peacekeepers, however, have been on the rise for the past couple of years. Last year, peacekeepers from Nepal were accused of causing the deadly cholera epidemic, which resulted in over 6,200 deaths and hospitalized more than 438,000. 231

 

Angry over the recent events, local residents have already begun demonstrations calling for the ousting of all U.N. peacekeepers. For more information, please see: Aljazeera – Uruguay Recalls Troops Over Haiti ‘Sex Abuse’ – 05 Sept. 2011 BBC News – Haiti Anger Over Alleged Uruguay UN Rape – 05 Sept. 2011 CNN – Uruguayan Peacekeepers in Haiti Investigated for Alleged Assault – 05 Sept. 2011 The Telegraph – Uruguayan Peacekeepers Investigated Over Haiti Sexual Assault – 05 Sept. 2011 _________________________________________________________________________ Thousands of Forced Sterilization Cases Reopened in Peru November 14th, 2011 By Emilee Gaebler Impunity Watch Reporter, South America LIMA, Peru – In a decision dated October 21, Peru’s Attorney General re-opened the investigation into thousands of forced sterilizations that occurred during the presidency of Alberto Fujimori. Fujimori, who served as President of Peru from 1990 until 2000, utilized this sterilization program in an attempt to reduce poverty rates throughout the country. Attorney General José Bardales was able to re-open the cases due to a recent announcement, by the Inter-American Commission on Human Rights that crimes against humanity had occurred in Peru’s sterilization program. The cases related to the program were closed back in 2009 on grounds that they were not a serious violation of human rights and under the statute of limitations. With this new classification as a crime against humanity, the program is now reachable as it cannot be proscribed. About 2,000 women have provided testimony that they were forced to undergo sterilization surgeries, although it is estimated by human rights groups that overall, 300,000 women were forcibly sterilized. Additionally, evidence shows that at least 18 deaths occurred as a result of these surgeries. The women were mainly from rural areas and illiterate. Those who were indigenous Quechua speakers were also targeted by the program. Amnesty International states that the program clearly violated human rights law in denying women their reproductive rights but was also racially motivated because of the victims being predominately indigenous Andeans. “Instead of providing women with other methods of family planning, like birth control pills, Fujimori promoted surgical and definitive methods. Health officials gave women no other options, no alternatives, they pressured and threatened them into having the operation,” said Francisco Soberon, head of Peru’s biggest human rights group APRODEH, in a phone interview with TrustLaw. The case receiving the most attention is that of María Mestanza. Mestanza was a 33-year old woman with 7 children who died in 1996 from complications after undergoing a 232

 

sterilization procedure. Her family originally brought the case to the Inter-American Commission on Human Rights due to testimony that Mestanza only went through the surgery after being threatened by officials. “Mestanza was told that a law had been passed and that she and her husband were going to be fined or imprisoned because they had (more than) five kids already,” said Alejandra Cardenas of the Center for Reproductive Rights based in New York. In 2001, the Peruvian government reached a settlement with Mestanza’s family that consisted of a $100,000 compensation payment as well as free education for her children. However, at the time of the settlement the regional human rights commission urged the Peruvian government to prosecute those responsible. The issue of consent was hotly contested when the cases were first brought. Officials of the Fujimori government claimed that all surgeries were done voluntarily as evidenced by signed consent forms. However, investigators paint a different version of the story with the women being harassed, threatened and outright lied to in order to get the forms signed. The sterilization policy to reduce poverty was started in 1995 and announced by then President Fujimori as a free program. The United States originally supported it with USAID donating $35 million. Shortly after the announcement, monthly quotas were enacted and enforced, driving doctors to forcibly sterilize many. Another victim, Victoria Vigo was sterilized during a cesarean surgery in 1996. Her baby was born prematurely causing the doctors to operate during which time the surgeon severed her fallopian tubes. The baby died during surgery, and afterwards, Vigo accidentally overheard a conversation between two doctors that she had been sterilized. “He [the surgeon] had even omitted it from my clinical notes. He knew what he was doing. I could have gone on trying for years and years to have another child without even knowing that I had been sterilized. I felt mutilated, completely violated. What kind of values does a person like that have?” said Vigo to Global Post. In 2003 Vigo sued the doctor and won $3500 in compensatory damages. At the trial the surgeon argued that he was simply following orders and that the program was official policy which he was bound to follow. Fujimori himself is currently serving a 25 year sentence for other human rights abuses committed during his presidency. At the end of his leadership in 2000, rampant corruption was exposed and Fujimori fled to Japan from where he faxed his resignation as President. Japan granted him citizenship, forcing Peru to spend years trying to extradite him. In September of 2007, Fujimori was brought to Peru and tried for his crimes involving a death squad. The 73 year-old was then diagnosed with cancer. His family is urging the current President Ollanta Humala to release him early on medical grounds. Humala, who won elections this past June, narrowly beating Fujimori’s daughter Keiko, has yet to respond to the request. The sterilization program was arguably a huge reason why Fujimori’s daughter lost. Throughout her campaign she remained vague about the 233

 

program, responding with apologies to victims but insisting the sterilizations were done by individual “bad doctors” acting independently. For more information, please see: Trust Law – Investigation Reopens Wounds of Peru’s Forcibly Sterilized Women – 9 Nov. 2011 Global Post – Peru: Forced Sterilization Cases Reopened – 8 Nov. 2011 Latin America Press – Forced Sterilization Cases Reopened – 3 Nov. 2011 Amnesty International – Peru to Reopen Investigation Into Forced Sterilization of Women – 31 Oct. 2011 Gulf Times – Pardon Sought for Fujimori – 31 Oct. 2011 Antara News – Fujimori Family Wants Pardon for Peru Ex-Leader – 30 Oct. 2011 Associated Press – Peru Reopens Probe of Forced Sterilization – 28 Oct. 2011 Latin American and Caribbean Womens Health Network – Peru: Forced Sterilization Cases Reopened – 28 Oct. 2011 _________________________________________________________________________ Brazilian Police Forcibly Evict Thousands From Pinheirinho Settlement January 25th, 2012 By Emilee Gaebler Impunity Watch Reporter, South America BRASÍLIA, Brazil – This past Sunday, January 22, at 6 am, residents of the Pinheirinho slum were awakened by the police and forcibly evicted from their homes. The police used rubber bullets, tear gas and were in full riot gear. They were backed up by armored vehicles and two helicopters. Following the physical actions by the police, the government cut electricity, gas and telephone lines for the area. The area was also blocked off and residents were unable to return. The slum, which is located about 60 miles east of São Paulo, had roughly 5,500 residents. Small battles between police and residents also occurred. Residents threw rocks and sticks at the troops, set up make-shift barricades and set cars on fire. About 30 arrests were made, multiple minor injuries were reported and at least one serious injury resulted from a rubber bullet shot. The Pinheirinho slum was established in 2004, when people began to occupy the land that a bankrupt company had owned. Residents of the settlement built homes, churches, schools and stores on the land over the past eight years. Recently, legal negotiations were underway to ensure that this type of eviction did not occur. There was a proposal that the land be purchased by the federal government and kept as a low-income housing area so as to legalize the established settlement.

234

 

Amnesty International states that the police action violates a previous agreement that no evictions would occur while a peaceful solution was sought. Brazilian officials claim that the action was legal as the slum was established by illegal squatters who have no land rights. The residents of Pinheirinho have been forced into a variety of emergency housing situations. Some are staying with family and friends. Another 350 families have been forced to take shelter in a school gymnasium with inadequate sanitation. Since Sunday, a few residents have been permitted back onto the land to gather small belongings. The police have also been cataloguing and removing furniture to return it to its rightful owners. Disputes over the legality of this action have emerged. Amnesty International and other land movement groups in Brazil like Movimento dos Trabalhadores Rurais Sem Terra (MST) protest the eviction and its effects, noting that now thousands of families are homeless. “What is happening in Pinheirinho is part of an unfortunate pattern of forced evictions in Brazil. As the country booms, tens of thousands of poor families are being removed to make way for infrastructure and private development projects, without receiving adequate protection and alternative housing. The Brazilian authorities… must actively engage with the residents to find a long-term solution that suits their needs — not temporary spaces in shelters which split up families,” said Atila Roque, director of Amnesty International, Brazil. Brazilian authorities claim that they are going to move all residents to a tract of land, roughly 0.4 square miles large, to “re-integrate” them into society. They also claim to be in the process of allocating them new homes and helping with food and transportation needs. For more information, please see: BBC – Criticism Grows of Brazil Slum Clearance by Police – 25 Jan. 2012 International Business Times – Brazil: Activists Condemn Forced Eviction of São Paulo Squatters – 25 Jan. 2012 Aljazeera – Clashes in Brazil Eviction Raid – 24 Jan. 2012 Amnesty International – Brazil Must Address Needs of Thousands Left Homeless Following Eviction – 24 Jan 2012 Rio Times – Police Retake Favela in SP State – 23 Jan. 2012 _________________________________________________________________________

235

 

Ecuador Continues Campaign to Close Rehabilitation Clinics that Use Torture to “Cure Homosexuality” February 1st, 2012 By Emilee Gaebler Impunity Watch Reporter, South America QUITO, Ecuador – Recent revelations have exposed the reality of homosexuality rehabilitation centers throughout Ecuador. Past patients of various clinics are coming forward and exposing the torture and abuse they endured in attempts to be “cured” of their homosexuality. Paola Concha, a 28-year-old woman was placed in one of these clinics by her family back in December of 2006. Her family, who were not in support of her sexuality, had contacted a clinic called Puente a la Vida (Bridge to Life) that was promising to cure Concha of her homosexuality. Concha was accosted at her house by workers from the clinic. She was handcuffed, beaten and forcibly taken to the clinic which is located on the outskirts of Quito. Over her three month stay at the clinic Concha was systematically tortured in an attempt to “rehabilitate” her. “I was kept in handcuffs for more than three months. I would be left without food for more than three or four days. They would handcuff me in a bathroom to a toilet bowl facing a toilet that was used by 60 people at the center,” said Concha. Patients at other clinics have released stories similar to Concha’s. Paula Zirritt said that she was held at a clinic in sexual reorientation clinic in Guayaqui for two years. Zirrit remembers being kept in cuffs and that the guards would throw urine and ice water on her. Others have stated they endured both sexual and physical abuse at these clinics. CNN reports that they visited the Puente a la Vida clinic recently, in December. A director at the clinic denied that they were attempting to change the sexual orientation of patients. He maintained the clinic’s goal was to “modify inadequate behaviors that are causing a particular individual to take inadequate attitudes.” Ecuador’s health ministry officials are taking steps to address the situation. The government has released statements that they will actively investigate and shut down all clinics attempting to change individual’s sexual preferences. The difficulty lies in the fact that many of these clinics are hiding themselves as alcohol and drug rehabilitation centers. This assertive campaign by the government follows a petition that garnered over 100,000 signatures around the world. The petition was set up on the website change.org and called for Ecuador’s Minister of Health to take action against these clinics. Since September of this year, roughly 30 of these “torture” clinics have been shut down.

236

 

Earlier this week a new Health Minister was appointed by President Rafael Correa. Carina Vance Mafla is the new minister. She is the former executive director for the gay rights group, Fundación Causana and an active gay rights activist. For more information, please see: The Washington Post – Ecuador’s Government to Crack Down on Clinics Found Using Coercion to “Cure” Homosexuals – 26 Jan. 2012 CNN – Ecuadorian Clinics Allegedly Use Abuse to Cure Homosexuality – 25 Jan. 2012 MSNBC – Rights Groups Hail Ecuador’s Crackdown on Lesbian “Torture Clinics” – 25 Jan. 2012 Change.org – Victory! Ecuador Ministry of Health Investigates and Closes Ex-Gay Torture Clinics – 23 Jan. 2012 Box Turtle Bulletin – Ecuador Closes 30 Ex-Gay Clinics – 12 Sept. 2011

237

Sign up to vote on this title
UsefulNot useful