Cruelty cognizant

Tucked in the recent ASIL Insight by our colleague, Vanderbilt’s Ingrid Wuerth, is an intriguing observation:
There’s a circuit split on whether victims of cruel, inhuman and degrading treatment may recover under the Alien Tort Statute.
Such mistreatment has long been forbidden in international instruments:
► The longstanding ban in international humanitarian law is evident in Common Article 3 of the Geneva Conventions of 1949, which "prohibit[s] at any time and in any place whatsoever ... "outrages upon personal dignity, in particular humiliating and degrading treatment;" those treaties further provide that such mistreatment of protected persons during armed conflict may constitute a grave breach punishable as a war crime.
► In international human rights law, an express ban appeared as early as the spring of 1948, when the American Declaration of the Rights and Duties of Man affirmed in Article XXVI:

Every person accused of an offense has the right ... not to receive cruel, infamous or unusual punishment.

At year’s end, the Universal Declaration of Human Rights posited an even broader proscription in Article 5:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

That proscription of what’s come to be called CIDT became binding international law when, as Article 7 of the International Covenant on Civil and Political Rights, it entered into force in 1976.
Similar formulations appear in other binding treaties, among them Article 5 of the African Charter on Human and Peoples’ Rights, Article 5 of the American Convention on Human Rights, and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
And yet it’s an open question whether CIDT is cognizable under the Alien Tort Statute. That 18th century statute, about which we've posted frequently, states:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The U.S. Court of Appeals for the 2d Circuit recently ruled that CIDT is cognizable in the Wiwa v. Shell Petroleum Dev. Co. of Nigeria litigation that’s the focus of Wuerth’s excellent Insight (not to mention these prior IntLawGrrls posts). But the 11th Circuit had held to the contrary in Aldana v. Del Monte Fresh Produce (2005).
At issue, Wuerth (above right) explains, is the Supreme Court’s statement in Sosa v. Alvarez-Machain (2004) that only claims possessing "‘definite content and acceptance among civilized nations’" are actionable. A court’s view of whether CIDT meets that standard seems to hinge on whether treaty provisions deemed non-self-executing – like that in the ICCPR, a treaty to which the United States is party – are nonetheless evidence of customary international law; to use the statute’s term, "the law of nations." The 2d Circuit says yes, the 11th Circuit says no.
This is no minor circuit split.

Alien Tort suits arising out of post-9/11 detention already have been filed, and more are certain to follow. Allegations of torture surely would meet the Sosa standard; however, given the United States’ recent efforts to ascribe a very narrow definition to "torture," plaintiffs may have an uphill battle proving that their treatment fits meets the standard set by a court. A lesser-included finding of "cruel inhuman or degrading treatment" would seem the logical default. If that finding is unavailable – for the reason that CIDT is not cognizable – plaintiffs will have alleged violation of a right that lacks a federal remedy.

Governing Women

A new UN Publication called Governing Women is out and looks very interesting:

Though the proportion of women in national assemblies still barely scrapes 16% on average, the striking outliers-Rwanda with 49% of its assembly female, Argentina with 35%, Liberia and Chile with new women presidents this year-have raised expectations that there is an upward trend in women's representation from which we may expect big changes in the quality of governance. But getting into public office is just the first step in the challenge of creating governance and accountability systems that respond to women's needs and protect the rights. Using case studies from around the world, the essays in this volume, edited by Anne Marie Goetz, consider the conditions for effective connections between women in civil society and women in politics, for the evolution of political party platforms responsive to women's interests, for local government arrangements that enable women to engage effectively, and for accountability mechanisms that answer to women. The book's argument is that good governance from a gender perspective requires more than women in politics. It requires fundamental incentive changes to orient public action and policy to support gender equality.

Interestingly, the case studies all come from the global south, except for the chapter on Women and Political Engagement ni East-Central Europe. Of concern to all those interested in good governance as well as women's involvement in it and its possibilities for securing greater protection of human rights.

Terror/Torture

In the face of terrorism, human rights law’s requirement that states “respect and ensure” rights necessitates that states take active steps to safeguard their populations from violent attack, but in so doing do not violate rights. Security experts usually emphasize the aspect of ensuring rights while human rights advocates largely focus on respecting rights. The trick, which neither side in the debate has adequately referenced, is that states have to do both at the same time. Hence, both our contemporary human rights and security discourses on terrorism need to be broadened and renewed. This renewal should be informed by the understanding that international human rights law protects the individual both from terrorism and the excesses of counterterrorism, like torture. To develop this thesis, my article Terror/Torture, 26 Berkeley Journal of International Law 1 (2008), explored the philosophical overlap between both terrorism and torture and their normative prohibitions. As I explain in this, my 1st IntLawGrrls post, the article aims to spark the development of a new human rights approach to terrorism by suggesting new discourses around the paradigm of terror/torture.
The seventh anniversary of the atrocities of September 11, 2001 (above right), is perhaps an appropriate time to stress that, in addition to continuing their work to criticize state practices in the context of the “war on terror,” international human rights lawyers need to develop an analysis of and specific response to the phenomenon of Muslim fundamentalism and affiliated transnational jihadist movements. The response to Muslim fundamentalism needs to be developed in the context of assessing other fundamentalisms – Christian, Jewish, Hindu – as well. (For an example, see the website of Women Living Under Muslim Laws/Femmes sous les lois musulmanes.)
Moreover, any such analysis and response need to be free from discrimination against Muslims – but not by pretending that the particular and grave challenge to international law from these fundamentalist and jihadist movements does not exist. Their primary victims, as the U.S. National Strategy for Combating Terrorism acknowledges, are other Muslims and people of Muslim heritage or those who live in the Muslim world. However, as that Strategy fails to acknowledge – but as Robert Dreyfuss explains in his 2005 book, Devil's Game – Western policies in the region have historically contributed to the rise of these movements. The social project of these movements also poses a particular threat to women’s human rights, as is evident from even a cursory glance at the website entitled Secularism is a Women's Issue.
Today’s somber anniversary is a good time to remember the importance of human rights support for those in the Muslim world and Diaspora Muslim populations who have exposed and opposed Muslim fundamentalist terrorism and whose human rights have been imperiled as a result. One example is Cherifa Kheddar (above left), the president of Djazairouna, an association of Algerian victims of Islamist terrorism. Kheddar’s brother and sister were both murdered by Algeria’s fundamentalist armed groups during the terrible 1990s. Since then, she has worked tirelessly in one of the most dangerous parts of the country to support victims of terrorism – and to demand justice for them. In addition to enduring the ongoing threat posed by the resurgent terrorism of Al Qaeda in the Islamic Maghreb, which seeks to rekindle the horrors of the 1990s in Algeria, Kheddar has also been penalized by the Algerian government for her opposition to an amnesty that was given to both non-state and government perpetrators. As is detailed here and here, she was demoted in her government job, and may lose her government housing (a very difficult sanction in Algeria’s impossible housing situation).
Another imperiled and important opponent of jihadist terrorism is the Algerian journalist Mohamed Sifaoui (left), who is known for his infiltration of Al Qaeda in Europe, which produced a celebrated exposé. Sifaoui is also an outspoken advocate of women’s rights. He was reportedly attacked by two men with links to Algerian armed groups on the streets of Paris in June. A civil society campaign currently seeks to have his French police protection reinstated. (See here and here.)
The real struggle against terrorism – as opposed to the “war on terror” which has so challenged international law – is a human rights struggle carried out in part by people like these with their voices and pens and organizing efforts. The only way such efforts can succeed is with sustained and thoughtful support from human rights advocates. Counterterrorist policies that violate international law clearly undermine the endeavors of people like Sifaoui and Kheddar. But a human rights response that focuses solely on the impact of counterterrorism, and not of terrorism itself, hinders their work as well. Instead, international lawyers need to develop what Gita Sahgal has called a “human rights account” of terrorism. Perhaps that could be our best contribution to commemorating the terrible events of September 11, 2001.

Read On! The Definitive Filártiga

(Read On! ... occasional posts on writing we're reading)

Every once in awhile, a case comes along that changes everything. Filártiga v. Peña-Irala (2d. Cir. 1980) was one of those cases. The Filártiga plaintiffs made an audacious assertion: that Paraguayan victims of human rights violations could bring suit in a U.S. federal court against a Paraguayan perpetrator for acts of torture and extrajudicial killing committed in violation of international law in Paraguay. (Plaintiffs were the sister and father of Joelito Filártiga, below left). The case established many firsts: that the Alien Tort Statute supports assertions of extraterritorial jurisdiction, that long articulated but rarely enforced human rights norms are justiciable, that the individual is front and center in international law as victim and perpetrator, and that ensuring a robust system of accountability is consistent with the interests of the United States. Filártiga empowered hundreds of additional victims to mobilize the U.S. legal system against human rights abusers who would otherwise find safe haven in the United States. Before Guantánamo and its repercussions, the United States boasted the most vibrant system of civil domestic human rights enforcement in the world. Professor William Aceves’s engaging new volume, The Anatomy of Torture: A Documentary History of Filártiga v. Peña-Irala (2007), tells the story of how we got here through a rich account of the Filártiga case and its progeny. (A fuller review is forthcoming in Human Rights Quarterly).

Aceves’s project joins the “law stories” movement in legal pedagogy exemplified by Foundation Press’s excellent series of course supplements. (Indeed, the Filártiga case is also featured in Foundation’s equally great Law Stories text on international law, in a chapter by Yale Law Dean Harold Hongju Koh: "Filártiga v. Peña-Irala: Judicial Internalization into Domestic Law of the Customary International Law Norm Against Torture" in International Law Stories (John E. Noyes et al. eds. 2007)). Aceves offers a definitive account of Filártiga’s procedural history—with an emphasis on the pleadings, defensive strategies, choice of law questions, the applicability of the “political” defenses (act of state, political question), legal and administrative remedies, appellate practice, and methods of enforcement. This exhaustive treatment of a single case provides a valuable window into the transnational legal process.

Yet, Aceves’s volume is more than a stereoscopic treatment of a single case and its impact. The text also includes a fascinating and exhaustive documentary history compiled from a variety of governmental and non-governmental sources within the United States and Paraguay. The mix of legal and political artifacts—complete with pleadings and opinions, embassy cable traffic, and transcripts of key hearings—enables a more complete understanding of the litigation process from pre-filing investigation to final judgment and all the hurdles in between. Indeed, Aceves was able to uncover intriguing information about the case that is not at all part of the official record from a variety of sources, including through recourse to the Freedom of Information Act. (The drawings below are by Dr. Joel Filártiga, one of the plaintiffs and also an accomplished artist).

Aceves’s book offers a compelling read for anyone interested in international human rights and their enforcement. With its more technical emphasis on the evolution of legal doctrines essential to ATS litigation, the book is geared more toward lawyers, academics, and students than toward laypersons. (A more dramatized account of the case is provided by Richard Alan White, Breaking Silence: The Case that Changed the Face of Human Rights (2004). White was a friend of the Filártigas who spent time with the family in the immediate aftermath of Joelito’s death. HBO produced a docudrama on the case entitled One Man’s War (1991), in which Anthony Hopkins plays Dr. Filártiga (left)). For the legal community, the book will undoubtedly serve many purposes. For one, its discussion of key precedents provides essential reading and an invaluable reference tool for practitioners of ATS litigation. From the perspective of legal pedagogy, the book has the potential to be a wonderful teaching tool for courses on the international legal process, transnational civil procedure, and human rights theory and practice. For students enrolled in law school human rights clinics, the book will provide a great introduction to the ebb and flow of human rights litigation.

The author (right) is uniquely well suited to undertake this study of transnational human rights litigation. Aceves teaches international human rights, foreign affairs law, and civil procedure at California Western School of Law, where he serves as the Director of the School’s International Legal Studies Program. In addition to his scholarly pursuits in these areas, Aceves has participated actively in a number of cases in the Filártiga tradition as litigation advisor and “friend of the court.” Aceves is also on the board of the Center for Justice & Accountability, one of the primary human rights organizations devoted to ATS litigation, and works regularly with Amnesty International. Given his insider’s perspective, it is no surprise that his book is a definitive account of this seminal case and its impact.

A fascinating chapter of this procedural story concerns the role of the Carter Administration, which eventually filed an amicus curiae brief in the case at the invitation of the Second Circuit. (Plaintiffs appealed the district court’s dismissal of the case on the ground that international law did not regulate the interactions between individuals within a single state, even when state action was involved). Aceves’s book provides a rare “behind the scenes” look at some of the inter-departmental and inter-branch negotiations between the Department of Justice, the Solicitor General, the Department of State, members of Congress, and even plaintiffs' counsel that preceded the filing of the brief. The final brief soundly rejected the district court’s approach to international law by confirming that the universal and fundamental prohibition against torture protected individuals from their own governments. A key feature of the brief is its dynamic view of the evolution of international law and the cognizability of customary international law. The brief confirmed that where a norm is well-established, such as the prohibition against torture, there is little concern that its private enforcement would undermine U.S. foreign policy interests. Rather, the brief opined, the failure to recognize a cause of action for acts of torture might undermine the credibility of this nation’s commitment to international human rights and its ability to exert influence on states with poor human rights records.

These are stirring ideas in the current climate, which has witnessed the re-emergence of a debate about the legality, propriety, and utility of torture and cruel treatment as means of interrogation; has occasioned government lawyers drafting legal memoranda that provide a blueprint for insulating U.S. officials from legal responsibility for unlawful interrogation techniques; and has resulted in the bipartisan passage of legislation stripping the courts of jurisdiction over claims by individuals who allege that they have been mistreated by agents of the U.S. government. The Carter Administration’s brief, with its unalloyed support for accountability and the civil enforcement of international human rights norms, is a striking contrast to official positions taken by the Bush Administration in the war on terror and in current ATS litigation.

The Second Circuit’s landmark opinion bespeaks a more hopeful and self-assured time. It is indeed startling to revisit this case in this historical moment. The United States, once a beacon of human rights values, is now subject to worldwide criticism for having turned its back on the human rights edifice. Likewise, its credibility as a champion of human rights worldwide and its ability to exercise global leadership on this score have been indelibly stained. In these unfortunate times of moral relativism, it is instructive to recall the uncompromising words issued by the Second Circuit in reinstating the Filártiga case:

In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free from torture. … In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations … is the right to be free from physical torture. Indeed, … the torturer has become like the pirate and the slave trader before him hostis humani generis, an enemy of all mankind.

These words—while somewhat muffled by the discourse of the day—still ring true and must be reaffirmed.

Human Rights Council Elections: Plus Ça Change

We've blogged before on the U.N. Human Rights Council, which replaced the discredited, politicized, and ineffectual U.N. Human Rights Commission. The latter institution traced its roots to the founding of the United Nations. The U.N. Charter created the Economic and Social Council, which itself was charged with establishing a commission for the promotion of human rights. The Commission developed a series of mechanisms to enforce human rights, but was beset by criticism of its "declining credibility and professionalism." Then Secretary-General Kofi Annan proposed to eliminate the Commission, in part on the grounds that states sought membership not to strengthen human rights, but to protect themselves from criticism. Problems with institutional capture became particularly salient when Libya was elected Chair of the Commission and Sudan was given a seat in the midst of the crisis in Darfur.

With U.N. General Assembly Resolution 60/251, the new Human Rights Council replaced the Human Rights Commission. This development was heralded as a "dawn of a new era" in the protection and promotion of human rights. Most importantly, council membership was supposed to be based on a "club good" model. The Council was also supposed to engage in a rigorous peer-review process of states' human rights practices. Most accounts of teh new Council's actions suggest, however, that the initial optimism was misplaced.

This is certainly born out by the Council's recent elections. On May 21, 2008, the U.N. General Assembly elected 15 new Human Rights Council members for the 2008-11 term: Argentina, Bahrain, Brazil, Burkina Faso, Chile, France, Gabon, Ghana, Japan, Pakistan, Republic of Korea, Slovakia, Ukraine, United Kingdom and Zambia.

Only twenty countries were candidates, and only those states within the same U.N. regional group actually competed against each other for the available slots. Most groups seemed to have coordinated their candidates. So, the African Group had 4 countries vying for 4 available seats, and the Latin American and Caribbean Group had 3 countries vying for 3 available seats. Some competition existed within the Asian, Eastern European and "Western European & Others" groups.

The elections need not be entirely pre-determined notwithstanding these odds. In order to become a Council member, a country must receive the votes of at least 97 of the 192 General Assembly member states. According to Resolution 60/251, General Assembly members are supposed to elect Council by

tak[ing] into account the candidates’ contribution to the promotion and protection of human rights and their voluntary pledges and commitments made thereto.

Council members can be suspended (by a 2/3 majority vote of the GA members present) if they fail to uphold the highest human rights standards.

Freedom House (logo, right) and U.N. Watch (logo, below left) had evaluated the candidate states using various indexes, such as Freedom House's annual survey of the state of political rights and civil liberties around the globe and The Economist's Democracy Index. These watchdog groups concluded that while many of the candidates were qualified, several were "questionable" (Brazil, East Timor & Burkina Faso) and others were outright "not qualified" (Bahrain, Gabon, Pakistan, Sri Lanka & Zambia).

You'll note that these latter designations did not appear to dissuade the General Assembly from appointing Brazil, Burkina Faso, Bahrain, Pakistan, Gabon & Zambia to the Council.

Now What?

As others have noted, the Supreme Court left open a number of pressing questions in its recent Boumediene opinion. Most intriguing from my perspective is the choice of law issue addressed to the question of which body (or bodies) of law will apply to determine the lawfulness of the detainees’ detentions in the forthcoming habeas proceedings. To this issue, the Court merely noted that:

It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined. (p. 69)

The question of which law governs is not an obvious one. In all cases, of course, U.S. law will govern the question of when and how an individual may be detained by U.S. government agents. In certain cases, however, international law speaks to the same question.

International humanitarian law (IHL) in particular is relevant to those individuals detained while participating in hostilities in Afghanistan (map left) prior to the establishment of a new government there (i.e., between October 7, 2001, and June 19, 2002). During this time, the conflict in Afghanistan was an “international armed conflict” within the meaning of Article 2 of the 1949 Geneva Conventions. (According to that provision, the Conventions “apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”). By contrast, individuals detained after June 19, 2002—when the conflict in Afghanistan was no longer an “international armed conflict” as defined by IHL—are only subject to the IHL governing non-international armed conflicts. (From that date onward, the conflict was no longer between High Contracting Parties; although multiple High Contracting Parties remain involved in the conflict, they are aligned on the same side (photo credit right)). Individuals detained outside of the theater of war, like the Boumediene petitioners who were detained in Bosnia-Herzegovina, likely fall outside of IHL altogether.

All of these individuals are presumptively protected by human rights law, which applies in times of peace and war. Article 9(1) of the International Covenant on Civil and Political Rights states:

No one shall be subjected to arbitrary arrest or detention.

The precise relationship between IHL and human rights law remains inchoate, although it is clear that in situations of armed conflict, both bodies of law will apply in a complementary fashion. For example, IHL as the lex specialis can add content to the determination when a detention is “arbitrary” within the meaning of human rights law.

This leads to the question of what substantive standards govern the legality of the detention of individuals under these various bodies of international law, assuming they apply. Under IHL, the specific rules applying to individual detainees depend upon conflict classification, the relationship of such individuals to the conflict, and the circumstances of their capture. In particular, in international armed conflicts, there are regimes for interning prisoners of war as a matter of course and for interning aliens in the territory of the Detaining Power or in occupied territory who present security risks.

By contrast, the rules governing non-international armed conflicts do not create a specific regime for the detention of individuals. Thus, the procedures applicable to their detention are governed by domestic criminal law as tempered by relevant provisions of international human rights law. The International Covenant on Civil and Political Rights, while setting forth a general prohibition against arbitrary detention and a right to habeas corpus, does not provide much in the way of substantive standards to determine when a detention is arbitrary. Clearly detentions not in accordance with procedures established by law would qualify (Art. 9(1)).

This choice of law question will also force the lower courts to confront §5 of the Military Commission Act, assuming it applies to pending cases. This provision states:

No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.

Strong arguments exist that this clause—if it indeed applies to situations in which detainees are contesting the validity of their detentions—violates fundamental separation of powers principles by constraining the sources of law and rules of decision courts can invoke in deciding matters before them, as convincingly advanced by our colleague Steve Vladeck (left) in his amicus brief in the cases.

(Cross posted on Opinio Juris).

On September 24, ...

... 1992 (15 years ago today), the Inter-American Commission on Human Rights, ruling on a petition brought 3 years earlier, confirmed petitioners' allegation that on "February 22, 1983, approximately 74 people were assassinated by members of the Salvadoran security forces near Las Hojas, Sonsonate, El Salvador." It concluded that the government of El Salvador (flag at right) was responsible for the massacre, in violation of several articles of the American Convention on Human Rights. The Commission directed the state to investigate and bring to justice those responsible, and to put in place measures for prevention of such atrocities.
... 1980, under orders from President Saddam Hussein, Iraqi armed forces bombed sites in Iran and set an oil export terminal in Iran on fire, the latest escalation of border skirmishes between the 2 countries. The Iran-Iraq War would not end for another 8 years; by that time, more than 400,000 had been killed and 750,000 wounded.