Look On! Asylum Cases Brought to the Theater

(Look On! takes occasional note of noteworthy films and stage productions.)

Playwright Jefferey Solomon has written two exceptional plays based upon real asylum claims and cases brought in United States immigration courts. The first, De Novo, depicts the case of a fourteen-year-old boy named Edgar Chocoy who fled Guatemala City when MS-13, the largest gang in Central America, put a hit on his life. He traveled over 3,000 miles through the desert, and across the borders of three countries in search of his mother who had left him at the age of six months to work in the United States. Detained by the Department of Homeland Security upon his entry, Edgar, normally quiet and timid, spoke clearly and loudly about his fear of being deported: “I’m afraid to go back. They’ll kill me.” A pro bono immigration lawyer helped Edgar argue his asylum case in Denver, but the Immigration Judge ordered Edgar deported to Guatemala. He was murdered seventeen days later. The play weaves together court transcripts, interviews, letters and other documentary sources to reconstruct the gripping and poignant true story of the case whose outcome prompted a national outcry and a fundamental reconsideration about the way in which the government handles the many thousands of unaccompanied minors in immigration custody.
The second play, Tara's Crossing, tells the story of a transgendered asylum seeker from Guyana and her uphill battle to prove her claims of persecution from within the confines of U.S. Immigration Detention. The play, inspired by interviews with asylum seekers from around the world, deals with the hurdles that lesbian, gay, bisexual, and transgendered asylum seekers and refugees face in proving that their fears of persecution are well founded particularly when detained.
Solomon’s theater company, Houses on the Moon, based in New York City, aims to educate the public about the perils that vulnerable asylum seekers face navigating US immigration procedures and laws, particularly as most are unrepresented. As IntLawGrrl Jaya Ramji-Nogales has documented in her co-authored pieces on asylum claims, the likelihood that an asylum seeker will be successful when unrepresented by an attorney falls to about 14%.
The Boston premiere of De Novo, presented by New England LawBoston’s Center for Law and Social Responsibility, will take place at the Stuart St. Playhouse on Wednesday February 9th at 6:30 with post play discussion with the artists and law professors to follow. The show is free and open to the public (rsvp to Martha.S.Drane@nesl.edu).

Nottebohm’s Nightmare

(Delighted to welcome back IntLawGrrls alumna Cindy Galway Buys, who contributes this guest post on her scholarship)

Many international law professors likely teach the 1955 International Court of Justice decision in The Nottebohm Case.

If so, they will recall that Frederic Nottebohm was a German-born businessman living in Guatemala at the time of World War II. He traveled to Liechtenstein during the war and became a citizen of that country in very short order. Guatemala refused to recognize his change in citizenship, leading Liechtenstein to bring suit against Guatemala at the ICJ. The ICJ held that Guatemala did not have to recognize Liechtenstein’s grant of citizenship to Nottebohm because he did not have a genuine connection to Liechtenstein.

Reading the ICJ decision always left me with unanswered questions. Accordingly, I began digging into the history a bit more to better understand why the ICJ reached the decision that it did.My research revealed that Nottebohm was the victim a little-known program run by the United States during World War II in which the United States pressured Latin American countries like Guatemala to identify persons of German nationality or ancestry and turn them over to the United States for internment for the duration of the war. Many of these persons were arrested and detained for lengthy periods of time as Nazi sympathizers on the basis of mere accusations unsupported by any real investigation or evidence. Sadly, as with the Japanese-Americans who were forced into detention camps during World War II, U.S. law and courts allowed these arrests and detentions of persons with German connections with little or no proof of Nazi sympathies, much less subversive activities. (credit for photo at right of arrival at Camp Kennedy, Texas, whose detainees included Germans from Latin America)

The original motivation for the U.S.-Latin American Detention Program appears to have been national security concerns, especially after the attack on Pearl Harbor on December 7, 1941. However, as time went on, the United States continued detaining persons who, like Nottebohm, had been deemed to present little or no security risks, because it was beneficial for the United States and Latin American governments to do so for economic reasons.

Thus, what started as a national security measure evolved into a program aimed at increasing U.S. economic influence in Latin America. Continuing to treat Nottebohm as an alien enemy ultimately paved the way for the Guatemalan government to expropriate his assets in Guatemala without compensation. The wartime setting and the alien enemy accusations also may have influenced the ICJ in its decision.

This research is set forth in an article I have posted on SSRN, entitled Nottebohm's Nightmare: Have We Exorcised the Ghosts of WWII Detention Programs or Do They Still Haunt Guantanamo?

The article begins by telling the story of how Frederic Nottebohm and his extended family came to be caught up in the U.S.-Latin American Detention Program. It relates the motivations behind the creation of the program and analyzes the legality of the program under both United States and international law existing at the time. The article next examines the extent to which the law has evolved and whether the changes in the law would lead to a different result today. (credit for photo at left of Crystal City, Texas, detention camp for interned Latin American families)

The article then draws parallels between the arrest, detention, and trial of alleged alien enemies during World War II and those practices being employed today with respect to alleged “unlawful enemy combatants” in the current fight against terrorism. Finally, the article suggests some lessons that may be learned regarding the treatment of so-called alien enemies during times of conflict that have relevance for current U.S. policies regarding the arrest, detention and trial of suspected foreign terrorists.

Apology / disculpa

The apology given for U.S. tests done six decades ago on unknowing Guatemalans was profuse.
Among the words in the bilingual, joint statement of apology, reprinted in full below, that Secretary of State Hillary Clinton (below left) (credit) and Health and Human Services Secretary Kathleen Sebelius (bottom left) (credit) issued on Friday:
► unethical / antiético
► outraged / indignados
► reprehensible / reprochable
► regret /disculpas
► abhorrent / abominables
► sad / triste
► appalling / atroz
None overstates the significance of a recent finding by Susan M. Reverby (right), the the Marion Butler McLean Professor in the History of Ideas and Professor of Women's and Gender Studies at Wellesley College. Reverby unearthed what a research team, funded by a grant from the United States' National Institutes of Health, did from 1946 to 1948. As stated by Dr. Francis S. Collins, current director of NIH, a D.C. briefing Friday, the team

intentionally infected vulnerable populations, including prisoners and mentally ill patients, with sexually transmitted diseases, including syphilis, gonorrhea, and chancroid. The purpose of the study was to test the effectiveness of penicillin, which was relatively new at the time.

Notwithstanding that "the intention was to provide treatment, and the evidence supports that the vast majority were adequately treated," Collins identified 4 "primary ethical violations":

► Experimentation on vulnerable populations;

► Apparent absence of informed consent;

► Deception respecting what what the team was doing to the subjects; and

► Intentional infection of potentially harmful pathogens.

A federal investigation is under way.

One hopes that investigators ask a question reporters at the briefing did not:

What does it mean that these tests took place at the same time that Americans were prosecuting Germans for medical experimentation -- in the same year, 1947, that a physician advising American war crimes prosecutors drafted what would come to be known as the Nuremberg Code, the keystone of current safeguards for human subjects?

While awaiting answer, ponder the Clinton-Sebelius apology:

The sexually transmitted disease inoculation study conducted from 1946-1948 in Guatemala was clearly unethical. Although these events occurred more than 64 years ago, we are outraged that such reprehensible research could have occurred under the guise of public health. We deeply regret that it happened, and we apologize to all the individuals who were affected by such abhorrent research practices. The conduct exhibited during the study does not represent the values of the United States, or our commitment to human dignity and great respect for the people of Guatemala. The study is a sad reminder that adequate human subject safeguards did not exist a half-century ago.
Today, the regulations that govern U.S.-funded human medical research prohibit these kinds of appalling violations. The United States is unwavering in our commitment to ensure that all human medical studies conducted today meet exacting U.S. and international legal and ethical standards. In the spirit of this commitment to ethical research, we are launching a thorough investigation into the specifics of this case from 1946. In addition, through the Presidential Commission for the Study of Bioethical Issues we are also convening a body of international experts to review and report on the most effective methods to ensure that all human medical research conducted around the globe today meets rigorous ethical standards.
The people of Guatemala are our close friends and neighbors in the Americas. Our countries partner together on a range of issues, and our people are bound together by shared values, commerce, and by the many Guatemalan Americans who enrich our country. As we move forward to better understand this appalling event, we reaffirm the importance of our relationship with Guatemala, and our respect for the Guatemalan people, as well as our commitment to the highest standards of ethics in medical research.

Declaraciones de la secretaria de Estado Hillary Rodham Clinton y la secretaria de Salud y Servicios Sociales Kathleen Sebelius sobre el Estudio de inoculación de enfermedades de transmisión sexual del Servicio de Salud Pública de Estados Unidos de 1946 a 1948:

El estudio de inoculación de enfermedades de transmisión sexual que se llevó a cabo de 1946 a 1948 en Guatemala claramente fue antiético. Aunque estos sucesos ocurrieron hace más de 64 años, estamos indignados de que tal investigación reprochable haya ocurrido bajo el pretexto de la salud pública. Lamentamos profundamente que esto haya sucedido y ofrecemos nuestras disculpas a todas las personas que resultaron afectadas por esas abominables prácticas de investigación. La conducta demostrada durante el estudio no representa los valores de Estados Unidos ni nuestro compromiso con la dignidad humana y el gran respeto hacia el pueblo de Guatemala. El estudio es un triste recordatorio de que las garantías adecuadas para la investigación en seres humanos no existían hace medio siglo.
En la actualidad, los reglamentos que gobiernan la investigación médica en seres humanos financiada por Estados Unidos prohíben este tipo de violaciones atroces. Estados Unidos es inquebrantable en su compromiso de garantizar que todos los estudios médicos en seres humanos que se realizan en la actualidad, cumplan con las rigurosas normas legales y éticas de Estados Unidos e internacionales. Bajo el espíritu de este compromiso con la ética investigativa, estamos iniciando una minuciosa investigación con respecto a los detalles de este caso de 1946. Además, mediante la Comisión Presidencial para el Estudio de Asuntos de Bioética, convocaremos también a un cuerpo de especialistas internacionales para que revise e informe sobre los métodos más eficaces para asegurar que toda investigación médica en seres humanos que se realice en el mundo en la actualidad cumpla con rigurosas normas éticas.
El pueblo de Guatemala es uno de nuestros amigos cercanos y vecinos en las Américas. Nuestros países son socios en una variedad de asuntos y nuestros pueblos están vinculados por valores compartidos, comercio y por los muchos stadounidenses de origen guatemalteco que enriquecen nuestro país. A medida que avanzamos para comprender mejor este atroz suceso, reiteramos la importancia de nuestra relación con Guatemala y nuestro respeto por el pueblo guatemalteco, así como nuestro compromiso con las normas éticas más exigentes en la investigación médica.

Ruling favors gender asylum claimant

The U.S. Court of Appeals for the Ninth Circuit has just issued a ruling with potentially far-reaching consequences for women seeking asylum in the United States.
The petitioner in the case, Perdomo v. Holder, is Lesly Yakayra Perdomo, a Guatemalan woman seeking asylum in the United States because she fears that she will be persecuted in Guatemala on account of her gender.
Under the Immigration and Nationality Act, an individual may obtain asylum in the United States if she has suffered past persecution or has a well-founded fear of future persecution on account of her race, religion, nationality, political opinion or membership in a particular social group. Perdomo is claiming that she has a well-founded fear of persecution on account of her membership in the particular social group of "all women in Guatemala."
The gravamen of her claim is that young women in Guatemala are tortured and killed at a disproportionately higher rate than men, without any response by the Guatemalan government. She cites reports by the U.S.-based Guatemala Human Rights Commission that describe the phenomenon of femicide in Guatemala. According to the Commission, in a country of 14 million, over 4,000 women were murdered between 2000 and 2008. Between January and August of 2008, 61% of those murders were the result of domestic violence, with 45% having taken place in the victim's home. Perhaps more disheartening is the Guatemalan government's lack of response -- a key element of any asylum claim -- a staggering 98% of the 4,000+ murders of women between 2000 and 2008 remain unresolved.
Both the Immigration Judge and the Board of Immigration Appeals considered Perdomo's definition of "all Guatemalan women" to be too broad to constitute a "particular social group" for purposes of the Immigration and Nationality Act. On appeal, a panel of the Ninth Circuit disagreed, finding that under Board and federal court precedent, gender alone can constitute a particular social group. Issued on Monday and written by Judge Richard A. Paez on behalf of himself and Judges Dorothy W. Nelson and William A. Fletcher, the decision:
► Cited cases in which asylum was granted to women who had endured female genital mutilation and women who faced beating and imprisonment for refusing to wear veils;
► Cited decisions from Australia, Canada, and the United Kingdom, all of which recognized gender as the basis for asylum; and
► Quoted from the UN High Commissioner for Refugees Guidelines on Membership within a Particular Social Group, which state that

women may constitute a particular social group under certain circumstances.

Unsurprisingly, the ruling is being portrayed as having the potential to "unleash a "wave of political asylum claims from applicants who say being a woman from Central America is reason enough to fear for their lives."
In actual fact, the Ninth Circuit remanded the matter back to the Board of Immigration Appeals to determine whether, in light Board and Ninth Circuit precedent, "all women in Guatemala" constitutes a "particular social group." Even if the Board were to so find, the case of Lesly Yakayra Perdomo and thousands like her would not be settled because, in addition to proving her membership in a particular social group, an asylum applicant must also demonstrate that:
► She has a well-founded fear of persecution on account of such membership;
► The government of her home country is unwilling or incapable of offering protection; and
► She cannot relocate safely within her home country.
Thus, while there is much to celebrate in the Ninth Circuit's analysis of gender under the Immigration and Nationality Act, the floodgates are far from open.

Positive Complementarity? The Case of CICIG in Guatemala

(Another in IntLawGrrls' series of posts in connection with the Kampala Conference)

As the International Criminal Court Review Conference winds down in Uganda, it is worth considering how national legal systems might actually get to the point when they are no longer notoriously “unwilling or unable,” to quote Article 17 of the Rome Statute, to prosecute serious crimes involving violations of human rights.

If it’s not the ICC’s job, then how could it happen?
Take the case of Guatemala.

Over 200,000 people, most of them Mayans, were killed during the 1960-1996 series of military dictatorships. (The case on which we've posted, concluding that this constituted genocide, can be found here). Since then, Guatemala has turned into a poster child for impunity: not only have most cases from the internal armed conflict period never been investigated or tried, but drug and human trafficking and fraudulent child adoption rings run rampant, and violence against women has led to over 4000 deaths of women and girls since 2000.

Less than 2% of the cases ever make it to trial. It got so bad that after much pressure from civil society, a U.N-sponsored initiative called the Commission Against Impunity in Guatemala (known by its Spanish initials as CICIG) was created in 2008 to help the national prosecutors’ office improve its ability to investigate and try cases. CICIG’s mandate is to investigate the existence of illicit security forces and clandestine security organizations that commit crimes, and to identify their illegal group structures (including links between State officials and organized crime), activities, modes of operation, and sources of financing. CICIG is to support the national Prosecutors’ office, act as a third-party prosecutor, and recommend policies to the government to strengthen the justice system. It does not, however, have the power to initiate its own prosecutions, a power the courts have held is exclusive to the Prosecutors’ Office. Thus, if the prosecutor is corrupt or ineffective, CICIG’s only recourse is through public pressure.

Nonetheless, the mechanism constitutes an interesting and innovative half-way house between technical assistance and a full-fledged hybrid tribunal.
Apparently, the mechanism had some modest success, and therefore stirred up quite a bit of opposition. Right-wing commentators began a campaign against the head of the Commission, Spanish prosecutor Carlos Castresana, accusing him of having an affair with a staffperson. But the last straw came last week, when President Alvaro Colom appointed as prosecutor a man named Conrado Reyes, accused by Castresana of having ties to organized crime. The U.N.-appointed anticorruption commissioner, Castresana, resigned in fury, telling the press that his recommendations had been ignored, and that the selection process for the new prosecutor had been itself influenced by criminal elements. Civil society organizations lamented the end of CICIG, and the new triumph of impunity.
And now the other shoe has fallen.
Today the Constitutional Court invalidated the whole selection process, told President Colom to start all over again, and held that any acts carried out by Reyes were invalid. Colom gratefully accepted the way out provided by the Court, and Reyes resigned.

While Castresana has not rescinded his resignation, a new Commissioner will find his or her hand strengthened by the outcome. Whether a new Commissioner can continue to prod, and whether a new Prosecutor will take seriously the need to put in place staffers who actually want to bring cases (whether for historical war-related crimes, femicides or organized crime activities) are still open questions.
But for now, at least, this type of international intervention in national legal systems, while not exactly “positive complementarity” about which Margaret deGuzman posted yesterday, might bear looking at closely by those concerned with making justice effective nationally.

Guatemala Battles Disaster on Two Fronts

On Saturday, May 29 Tropical Storm Agatha--the first of the 2010 Pacific storm season--hit Guatemala. So far, Agatha has killed about 100 people and opened a sinkhole in Guatemala City large enough to swallow a three-story building (photo credit). As if that wasn't enough, the Pacaya volcano, situated just 15 miles south of Guatemala City, erupted on Thursday afternoon, spewing lava and rocks and flooding the capital with sand and ash. The airport closed, a television reporter was killed by a shower of burning rocks, and the President called for calm as thousands fled their homes in search of safety. I actually felt the tremor as I was teaching on Thursday afternoon, but having lived in Northern California for almost a decade, I thought nothing of it. I continued teaching with hardly a pause.

But now that we know the extent of the devastation, it is impossible not to weep with the Guatemalan people. The death toll on these twin disasters is still climbing, and no one yet knows the price tag on rebuilding the 800 or so homes destroyed and otherwise giving aid to the victims. A country that was already facing unbelievable odds now must face one more: recovering from the one-two punch of Agatha and Pacaya.

In a horrible twist, our students in the McGeorge InterAmerican Program found themselves in the midst of the crisis. They had been on a field trip with their professor--my colleague Raquel Aldana. With the rains came mudslides that closed the roadways and effectively trapped the McGeorge group where they were for a couple of days. Raquel courageously shepherded our students to safety and kept everyone calm. They are now safe and well having lived through an experience they will never forget.

Throughout the crisis McGeorge has been incredibly supportive, as have friends, colleagues and family. How lucky we are--those of us with money, a U.S. passport, and friends and loved ones. We have the luxury of knowing we always have an exit strategy. So many here in Guatemala are not quite so lucky.

I'll be teaching class again for the first time tomorrow. It is difficult to imagine discussing the finer points of GATT Article I's non-discrimination provision; but I also realize my work here is very relevant. I don't have to convince these students of the need for every country to have a basic level of wealth and development to care for their people in times of crisis. My students have faced the problem head on. And they have been changed by it.

Trade & Development in Guatemala

I am in Guatemala for the next few weeks teaching a course on trade and development in Latin America (no, not in Spanish). The students are both Guatemalan and American, and as I prepare for my first day, I'm struck by the different experiences they surely have encountered around trade. For centuries, Guatemalan trade was exploited by and for the Spanish outsiders. Even after independence, much of it continues to be exploited for the benefit of the few. Americans, however, have a history rich in the spoils of international trade. Free trade has served us bountifully and well. Those of you who have been reading my posts for awhile know that I am "pro" trade. I believe in the power of trade to bring not just economic benefits but true freedom to the masses. But it is impossible to be a student of economic history and ignore the uneven benefits trade has brought -- particularly in a country like Guatemala.

Guatemala is a country rich in many things. The Mayan culture is alive and thriving, providing a doorway into the language, history and religious practice of these early Americans. It is blessed with good weather, wonderful food and music, gorgeous vistas and a warm, welcoming population. But Guatemala is not rich in the economic sense of the word. It has the largest economy in Latin America, representing about one third of the population and one quarter of the GDP of the Central American Common Market. But the level of poverty in Guatemala -- and more specifically, the vast stratification in wealth between the haves and the have nots-- is among the highest in Latin America. Simply put, trade has not worked for Guatemala. Well, at least not the way it is supposed to work.

Free trade theory tells us that exchanging goods and services at the international level provides wealth. This wealth must then be effectively redistributed from the government down to the people. What happens when that mechanism fails? Well, free trade tells us that is a "distributional" problem not a trade problem. Trade policy is not the problem, thus it cannot provide a solution (sort of like the idea that "Guns don't kill people. People kill people." So why have gun control?) Of course this distributional problem de-legitimizes trade in the eyes of the vast majority who will never see its benefits. It is thus impossible to come to a place like Guatemala and simply content oneself with the same old answers. But does that mean trade is not good? Does that mean we all close our borders while we strive for the illusive but oh-so-seductive idea of self sufficiency? I think not.

Professor Frank Garcia in his piece Is Free Trade “free?” Is it Even “trade?” Oppression and Consent in Hemispheric Trade Agreements provides an excellent framework for understanding what free trade is -- and more importantly, what it is not.

[T]he essence of free trade ... is consent: trade consists of voluntary mutual bargained-for exchanges of roughly equal value. Three other types of transaction which, while they may look in some ways like free trade, do not in fact meet this definition: theft or predation, which may not be trade at all; coercion; and exploitation, which may be trade in some sense but also introduce other dynamics of concern for normative and pragmatic reasons. Participants in any of these three will see economic value exchange hands, and society may reap some economic benefit, but under conditions involving the absence of either basic consent, or the fullness of consent.

In short, a non-consensual exchange of value is not free trade even when it provides an economic benefit. Trade is inherently a consensual transaction. And though the Spanish conquerors of Guatemala might want to bestow the title of "free trade" on their actions, they cannot do so -- at least not in Garcia's (and my own) world. But I wonder whether in a postcolonial world the definition of free trade should be extended. Is it still free trade when a country's own bottleneck prevents the benefits of trade from accruing to the majority of its population?

In 2009, the World Trade Organization conducted a thorough review of Guatemala's trade policy regime. It gave Guatemala a relatively good bill of health: protection of domestic goods through high tariff walls has decreased -- the average tariff rate went from 7% in 2001 to 5.9 % in 2008, for example. The report has little to say about addressing the distributional problem, however.

My American students will not have had to confront these issues in quite the same way as my Guatemalan students have. For them, one question seems inevitable: Is this really what free trade is all about?

Arrests of Guatemalans in U.S. accused of massacre: beginning of a new trend?

Yesterday the U.S. Immigration and Customs Enforcement (ICE) and the Justice Department announced that they had arrested Gilberto Jordán, a former member of an elite army unit known as kaibiles, for lying on his immigration forms about his participation in a 1982 massacre. Two more former officials had also settled in the U.S. and are being sought. A fourth man, Santos Lopez Alonzo, pled guilty to illegally entering the country; he was fined $10 and is due to be deported.
The massacre, in a remote northern village known as the Dos Erres, was part of a campaign by the army against perceived opposition to military rule. While most of the victims of the military campaigns were Mayan, Dos Erres was a mixed settlement of recent immigrants to the zone. They had left insufficient land plots in the highlands to move to a settlement on the agricultural frontier, but in December 1982 they were targeted as potential guerrilla sympathizers. The army surrounded the town, rounded up the townspeople and divided them into groups of men and women. As Gilberto Jordán admitted to the authorities, he started the killing by throwing a baby down the town well, still alive. Next the women were raped, killed and thrown down the well, followed by the men. In all, there were 251 villagers killed. (credit for photo above right of clothing of children killed in the Dos Erres massacre)
Jordán had been living in the U.S. since 1999, and had become a naturalized citizen without mentioning his participation in the massacre in his application. The other two suspects are Jorge Vinicio Sosa-Orantes of Riverside, California, and Pedro Pimentel-Rios of Santa Ana, California. Sosa-Orantes was a lieutenant at the time. In the U.S. he worked as a martial arts instructor. Pimentel-Rios, accused by witnesses of raping young girls before killing them, moved to the U.S. after a career that included a stint at the U.S. School of the Americas. More on the defendants can be found here. The Dos Erres massacre has become an emblematic case of Guatemala’s culture of impunity. It’s not that there’s a lack of evidence: two other elite soldiers confessed and provided eyewitness evidence in the case, and one survivor who, at age 5, witnessed his family’s murder before being taken as a domestic slave by López Alonzo. That man, Ramiro Cristales, has agreed to testify in the case and, along with the repentant soldiers, is now in hiding. The problem is that the case has languished in the Guatemalan courts for years. Every time there was any movement, lawyers for the defendants would file motions, called amparos, that had the effect of paralyzing the proceedings. One of the claims was that the case was covered by the country’s 1996 amnesty law.
Fed up, lawyers for family members of those killed went to the Inter-American Commission for help. The Commission found that Guatemala had violated the rights of the victims to redress and judicial process, and the Court, in 2010, agreed. It ordered the Guatemalan state to quit stalling and remove legal obstacles to prosecution, and to press forward with exhumations of the remains of the dead and other pre-trial procedures. In February, 2010, the Guatemalan Supreme Court held that the amnesty law did not apply, and that the lower courts should refuse to countenance any more dilatory motions and should get on with the business of amassing evidence and hearing the case. Since then, the Prosecutors’ office has announced that it is moving forward on the case, although a highly-contested process for election of the chief prosecutor may complicate things.
In this context, U.S. authorities have a number of choices for dealing with those arrested. They could, as is usually the case when those suspected of war crimes, torture, genocide or crimes against humanity, simply deport those who are non-citizens back to Guatemala. Unless such deportations are coordinated carefully with the Guatemalan prosecutors’ office so that the suspects are detained on arrival in Guatemala, however, deportation is simply a get out of jail card, as the suspects will disappear and never be tried. This has been the unfortunate outcome in the past. Or they could arrange for deportations to be carefully coordinated and get assurances from Guatemalan prosecutors that they will take over prosecution under international standards. Another option, especially for naturalized U.S. citizens, is to charge them with visa fraud for non-disclosure of their actions. This carries a potential ten-year prison term, at which point they could be deported back to Guatemala. This provision is already being used to strip former Salvadoran Defense Minister Garcia of his citizenship. While not ideal in terms of either the symbolic value or the length of sentence, fraud charges are no doubt easier to prove and less fraught than the underlying crimes.
Finally, U.S. authorities could charge the suspects with the underlying crimes and try them here. U.S. law provides jurisdiction for torture, genocide, slavery or recruitment of child soldiers when the offender is found in the U.S., no matter what his nationality or where the crime occurred. The section on torture was used to prosecute “Chuckie” Taylor, former Liberian president Charles Taylor’s son, who in 2009 was convicted and sentenced to 97 years in prison. It has not been more widely used because prosecutors have been loath to take on cases where the acts occurred prior to 1994, when the statute was enacted. As a matter of international law, this interpretation is incorrect: according to Article 15 of the International Covenant on Civil and Political Rights, there is no ex post facto problem when the behavior at issue has been criminalized in national or international law. Genocide, slavery and systematic torture have long been recognized as international crimes.
At this point, whether trial in Guatemala or in the U.S. is the best alternative depends on how seriously the Guatemalan prosecutors’ office seems to be in matching actions to their professed intentions to prosecute the case at home. The U.S. should not give up the suspects without negotiating serious guarantees that they won’t just be mysteriously “sprung” from a local jail. If the choice is to prosecute here for visa fraud, U.S. authorities should seek ways to put the underlying facts of the massacre before the court, and to allow massacre victims some degree of participation and observance of the proceedings. The U.S. should also seek to collaborate with the Spanish judicial authorities, who are investigating the related case of genocide in the Spanish courts. Information and witness sharing, especially about military methods, training and objectives, could be useful in both cases. The Dos Erres case could become a symbol not only of horror, but of international prosecutorial and judicial cooperation and of a real commitment to finally make the U.S. “no safe haven” for war criminals.

Law & migration & mothers & children

What a treat to have moderated the opening session of Uprooted: The International Migration of Children, the symposium that 2 student journals here at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall) -- our Journal of Juvenile Law and Policy and our Journal of International Law and Policy -- cosponsored on Friday. (prior post)
Titled "The International Context that Pushes Migration," the session provided a rich overview of the causes, conditions, and effects on families of transnational migration trends.
1st up was our colleague Chivy Sok (right), whose career in human rights advocacy includes current service as a member of the Steering Committee of the Ginetta Sagan Fund of Amnesty International USA, as well as prior human rights center leadership at Columbia University and the University of Iowa. Chivy told of her own childhood picking onions for hours in U.S. fields alongside others in her Cambodian refugee family. Chivy then placed her experience in context. More than 200 million children labor worldwide, she said. Three-quarters work in agriculture. Agricultural hazards -- injuries from equipment, harms from pesticides -- constitute a leading cause of death among children. Many of these children have no access to education, to health care, even to basic hygiene. Sok pointed to the Children’s Act for Responsible Employment, legislation that U.S. Rep. Lucille Roybal-Allard (D-Calif.) introduced in Congress last fall, as a potential means to address these problems.
Following Chivy was Jayne E. Fleming (left), Pro Bono Counsel at Reed Smith in San Francisco and the subject of a recent profile in the National Law Journal. (photo credit) Jayne recounted the forces of migration through stories about clients who live and work at a garbage dump in Guatemala. Economic forces of course play a role, she said, adding:

Extreme poverty is absolutely a human rights violation.

Other forces of migration emerged during the session, among them: implementation of the Central American Free Trade Agreement; political violence and armed conflict; family disintegration; sexual exploitation or incest.
Yet another force was at the center of remarks by the session's 3d speaker, Dr. Rhacel Salazar Parreñas (right). Some women migrate not out of sheer desperation, she said, but out of desire to improve their family's economic and social mobility. Professor of American Studies and Sociology at Brown University, Rhacel told what she'd learned her ethnographic research on globalized domestic workers. She focused on how laws break up families, compelling mothers to leave their children behind when go abroad to work. Once there, mothers find themselves infantilized by law -- assigned the legal status not of an employee, but rather of a member of the employer's family. They must depend on employers to treat them well, and they discover, when employers do not, that national labor laws do not protect them. This vulnerable status prevails in countries that pride themselves on human rights records -- Rhacel named Denmark and Sweden in particular -- as well as in those that do not. One reason? A "maternalist ideology" by which "various states are in denial that mothers are leaving the home," and so fail to take measures to protect the migrant domestic workers who care for the home in their stead.

Kudos to these excellent speakers, to journal editors Eve Epstein and Monica Feltz and their staffs, and responsible for putting together this stimulating panel.

(Cross-posted at California-Davis Law Faculty Blog)

Arrests and Convictions of Rights Violators in Latin America: Justice Delayed but Not Denied

Simultaneous advances in the prosecution of grave international crimes by national courts took place in Guatemala and Chile yesterday.

Chile
In Chile, Investigating Judge Victor Montiglio issued arrests warrants for 129 former associates of the secret police (DINA) during the Pinochet years. The warrants involve members of all three branches of the military as well as the police, accused of working with the DINA to forcibly disappear suspected opponents of the government of General Augusto Pinochet during the 1970s. The cases on which the warrants are based include the forced disappearance of top leaders of the Communist Party, the killing of members of the Movement of the Revolutionary Left, which at the time was portrayed as a result of internecine war within the left, and killings and disappearances as a result of Operation Condor, the South America-wide coordinated effort by the military regimes (with U.S. backing) to rid themselves of leftist activists. The judge indicated that he is pursuing anyone who was involved in the crimes, not just those “most responsible.”
A few interesting issues raised by the warrants:
► First, technically, Chile still has an amnesty law in place, and the center-left governments that succeeded Pinochet have been unable to overturn or “interpret” the law legislatively despite a clear decision by the Inter-American Court of Human Rights, in Caso Almonacid Arellano y otros v. Chile (2006), that the government must do so. Rather, the judiciary has itself interpreted the amnesty law so that it does not apply in cases involving either forced disappearances or other international crimes. The amnesty has not stopped indictments, trials and convictions (nor has the statute of limitations on the crimes, which has been held not to apply to either continuing crimes or crimes against humanity). Rather, Chile's Supreme Court, in a number of cases starting last year, has allowed convictions but then reduced the sentence greatly as a result of a procedural device called “half prescription.” Under this device, because the cases have taken so long to go forward, the defendant gets the applicable sentence reduced, and the aggravating factors that would otherwise increase the sentence do not apply. In a number of cases, convictions for the disappearance of sizable numbers of people have led to 3-to-7-year sentences: any sentence less than 5 years can be served on parole. This has led to an interesting debate in Chile:
► Is it better to convict but not punish the former security forces (most now quite elderly), or is that yet another affront to the victims?
This debate is sure to recur as the current crop of cases comes to trial.

Guatemala
In Guatemala yesterday, a trial court convicted Felipe Cusanero of 6 counts of enforced disappearance in the early 1980s. Cusanero was a military commissioner (local army representative) from Chimaltenango province outside the capital. He was sentenced to 25 years in prison for each count. The victims were Mayans from the village of Choatulún, and the disappearances were part of an estimated 200,000 deaths and 40,000 disappearances that took place from 1960 to 1996 in Guatemala. This is the first time a local court has convicted a military participant in the massacres that took place in the early 1980s, and the first time the Public Prosecutors’ office has successfully led a prosecution of crimes from that era. The three judges ruled that to condemn the accused on grounds of forced disappearance did not violate the prohibition on ex post facto law, since the underlying acts have long been criminal in both national and international law. The case was closely watched in the Guatemalan courts as a possible small break in the almost-total impunity that now exists for those who ordered and participated in massacres and widespread and systematic disappearances and torture during the “internal armed conflict” period. The judges -- Walter Paulino Jiménez Tixaj, Alba Delia Moscoso Linares y Neslie Guisela Cárdenas Bautista – showed tremendous courage in their verdict, given threats against them, and against any judge who dares hear witnesses or evidence about genocide or crimes against humanity in Guatemala.

So ... a good day for the fight against impunity for international crimes in the Americas. Eric Holder, are you listening?

In Spain, jurisdiction won't be truly universal

(Thanks to IntLawGrrls for giving me this opportunity to contribute this guest post and my transnational foremother dedication.)

The bill that would restrict universal jurisdiction in Spain, about which IntLawGrrls have posted here and here, constitutes an important setback in the Spanish contribution to the fight against impunity.
Why the setback?

A number of factors that have paved the way for the reform of Spanish legislation:

► The concerns of some about the ongoing dozen cases being investigated by Spain's Audiencia Nacional, cases through which it plays a role as, effectively, a universal court;

► Political pressure from states like China and Israel; and

► The path taken by the European Union to come to terms with the African Union, as reflected in the April 2009 AU-EU Expert Report on the Principle of Universal Jurisdiction -- about these regional organizations' respective understandings on the principle of universal jurisdiction.

This bill (text in English here) would move away from the “pure” universal jurisdiction allowed in Spain's current law, codified at Articles 23 and 24 of Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial. As IntLawGrrl guest/alumna Pamela Merchant has noted, the proposed legislation has many flaws. By way of example, it would introduce:

► Extremely demanding conditions -- even a reverse interpretation of the principle of complementarity that is a cornerstone of the Statute of the International Criminal Court.

► Limitations on the exercise of universal jurisdiction that resemble a doctrine repudiated by Spain's highest court. The limitations resemble the doctrine that Spain's Tribunal Supremo advanced in 2003, in an appeal against the Audiencia Nacional decision in the Guatemala Genocide Case mentioned in Merchant's post. By an 8-7 vote Spain's supreme court maintained in 2003 that only cases with a “legitimating connection,” such as the nationality of the victim or the presence of the offender, could proceed; moreover, the connection was said to have to be present in the principal charges, not just in related or ancillary charges against the defendant. But a higher court in Spain, the Tribunal Constitucional, annulled that ruling two years later. The constitutional court (left) held that the physical presence of the suspect is not required to initiate an investigation based on universal jurisdiction. It also held that territorial courts and an international court have priority over Spanish courts exercising universal jurisdiction; however, universal jurisdiction could be exercised by Spanish courts if a party to the case submitted demonstrated that courts in the territorial state were unwilling or unable to investigate and prosecute effectively the crimes alleged in the complaint. Thus it established that the law did not require the showing of a link between the prosecution of a universal jurisdiction crime and Spain's national interest; indeed, the Tribunal Constitucional considered requirement of such a link to be "contrary to the spirit" of the principle of universal jurisdiction. (photo credit)

It is one thing is to limit abuse and subject the exercise of universal jurisdiction to reasonable limits, such as those envisaged in the Princeton Principles on Universal Jurisdiction (2001) or in some of the provisions of the Krakow Resolution on "universal criminal jurisdiction with regard to the crime of genocide, crimes against humanity and war crimes," adopted in 2005 by the Institut de Droit International. But it is very different thing to adopt limitations so far-reaching that the defeat the purpose of the principle of universal jurisdiction.

As Lloyd Axworthy, formerly Canada's Foreign Minister and now President and Vice Chancellor of the University of Winnipeg, put it in this 2006 essay:

The application of universal jurisdiction does not entail a diminution of state sovereignty but rather the enforcement of a collective and fundamental system of criminal justice.

An end to universal jurisdiction?

(Thanks to IntLawGrrls for giving me this opportunity to contribute another guest post.)

El Congreso de los Disputados (left), Spain's lower house of Parliament, has passed a bill that would limit the reach of universal jurisdiction and profoundly restrict Spain's ability to prosecute serious human rights crimes. (The legislative push was mentioned in this prior IntLawGrrls post.) The bill, available in English translation here, will go before the Spanish Senate for a final vote in the fall.

As is well known, the Spanish universal jurisdiction law was used to pursue former Chilean dictator Augusto Pinochet in 1998. Since then, the law has allowed Spanish courts to stand as a last resort for victims who cannot find justice at home:

► Using this law, Spanish courts have issued warrants for top Rwandan leaders and convicted an Argentine official for "dirty war" killings.

► The law also forms the basis for the Guatemala Genocide Case and the 1989 Jesuits Massacre Case in El Salvador, both now being litigated by the Center for Justice & Accountability, the San Francisco-based nongovernmental organization for which I am Executive Director.

As detailed here, the bill is flawed, yet there may well be constructive means by which the Spanish legislature can clarify the application of the universal jurisdiction law. For instance, the proposed bill correctly adds crimes against humanity to the list of admissible crimes. But the amendment will do nothing to streamline the legal process or to weed out spurious claims from the many legitimate human rights cases that have been brought. Worse still, this amendment may close the doors of Spanish justice to thousands of survivors of human rights abuses. This bill should not become law.

We'll continue to work with the Asociación Pro Derechos Humanos de España, and other partners around the world, to oppose this legislation as it stands and to seek reforms that will protect this powerful tool for human rights.

On April 26

On this day in ...
... 1998 (10 years ago today), 75-year-old Juan Gerardi Conedera, a Roman Catholic Bishop, was fatally bludgeoned in Guatemala City, Guatemala. His death occurred 2 days after he issued Nunca Más (Never Again), his "scathing report on human rights violations committed during the country's 36-year civil war." In June 2001, a Guatemalan court sentenced to 30 years in prison the retired colonel, the captain, and the sergeant whom it had convicted of the murder. (photo credit: Bishop Gerardi's funeral procession)
... 2008 (today), is celebrated the 8th annual World Intellectual Property Day. It was founded by the group responsible for monitoring global developments in intellectual property, aptly named the World Intellectual Property Organization, or WIPO. Its Director General, Kamil Idris, states, with good reason:

The man or woman in the street might wonder just what makes intellectual property worth all this effort. What, they might ask, do the workings of copyrights, patents, industrial designs or trademarks have to do with the really big issues, like how to stop global warming; or with the things that add spice to life, like watching their favorite athletes perform in this year’s Olympics?

His answer:

The answer is that, without intellectual property rights, many new technologies developed to tackle global problems would never see the light of day and the great sporting events, which entertain and unite us, would not be broadcast into homes across the globe.

And for that reason, he concludes:

[O]n World Intellectual Property Day, we pay tribute to the inventors and artists, great and small, who enrich our existence with the fruits of their innovative thoughts and creative vision.

Break from formalism opens path to conviction for crimes against humanity

Á propos of the post this week by Jaya Ramji-Nogales on the alacrity with which Spanish courts apply universal jurisdiction:
Check out this "Spanish Supreme Court Affirms Conviction of Argentine Naval Officer for Crimes Against Humanity." In this recent ASIL Insight our colleague, Richard J. Wilson, provides a detailed discussion of the November 2007 judgment affirming the conviction of Adolfo Scilingo, a former officer in the Navy of Argentina (flag above), for crimes against humanity stemming from his role "in murders and illegal detentions in Argentina." Wilson notes that the Criminal Chamber of the Supreme Court of Spain (flag below) overturned the lower court's convictions on 3 other grounds, torture, genocide, and terrorism. He adds that the decision, still available only in Spanish,

constitutes another chapter in the tangled history of efforts by Spanish courts to interpret domestic and international law to charge individuals who fall within Spanish universal jurisdiction law with extraterritorial crimes.

Other chapters include the Guatemala Genocide Case of 2005 (about which, as Wilson notes, IntLawGrrl Naomi Roht-Arriaza published a casenote at 100 American Journal of International Law 207 (2006)), actions against officials of China, and the litigation against Rwanda that was the subject of Jaya's post.
Still, the Scilingo decision is a landmark. Following examination of the post-Nuremberg status of the nullum crimen sine lege, or legality, principle (an issue about which IntLawGrrl Beth Van Schaack has posted here) Spain's Supreme Court did something that was not to be expected. In Wilson's words:

In the highly formalistic civil law tradition of Spain, it is quite extraordinary for the Supreme Court to find criminal responsibility for crimes against humanity in customary international law without a previously defined provision for that offense in the criminal code of Spain.

Spanish judge calls for evidence in Guatemala genocide case

Spanish judge Santiago Pedraz yesterday issued a call to anyone having information about the genocide of Mayan people in Guatemala in the 1970s and 80s to forward the information directly to him. The call is a response to a decision of the Guatemalan Constitutional Court in December to deny extradition of high-ranking former members of the army and police for the crimes of genocide, terrorism, torture and forced disappearance. Pedraz had asked for extradition last year, and the lower courts in Guatemala responded by executing the arrest warrants. Two of the defendants had spent the last year under guard in a military hospital, and another two in hiding. The Constitutional Court ruled right before the new government of Alvaro Colom took power, presumably to avoid any chance that the new government might approve the extraditions.
This back and forth between the Spanish and Guatemalan courts is the latest salvo in an effort to shake loose the continuing impunity for international crimes in Guatemala through combined internal and external efforts. The lower courts actually responded well, finding that extradition was proper under a hundred-year old treaty, and that the Spanish courts had jurisdiction. The Constitutional Court has always been heavily politicized, and the tone of its decision was dismissive of the genocide claims and bordered on abusive towards the Spanish courts. Apparently, the result so far has been to annoy the Spanish judge and generate protests from human rights organizations.
The Center for Justice and Accountability, which represents complainants in the case (with a multinational legal team overwhelmingly made up of women), has asked individuals, groups, and organizations to write to the incoming president asking him to comply with the state's obligation to extradite or prosecute and further obligations under the Genocide Convention not to label these as political crimes. It's a good moment to push for a serious domestic investigation into the past: the UN-sponsored Investigatory Commission, focused on helping the prosecutors' office do a better job of prosecuting more recent crimes involving powerful crime/drug/smuggling/ex-military networks, has just started work as well.

Abduction, adoption, and international law

Still in custody: 9 French citizens "wearing T-shirts with the slogan 'Children Rescue'" and 7 Spanish plane crewmembers in flight suits. The 16 were seized Thursday as they were readying to fly from Abéché, near Chad's border with the Darfur region of Sudan, to an airport near Rheims, France. With them at the time of arrest were 103 children, all under 9 years old.
The French detainees are affiliated with l'Arche de Zoé (Zoe's Ark). That NGO, whose website's a call to alarm over Darfur, maintained that the children were the 1st of 1,000 young refugees whom it planned to take away from the conflict in Darfur so that they might live with families in Europe that'd "each paid about €1,400 for the right to care for the children," according to London's Times; the International Herald Tribune put the amount at "€2,400, or nearly $3,500, per child."
The Times called it a "fiasco"; that seems a mild way to describe the operation, attempted just days before peace talks on Darfur were about to begin. (The talks began yesterday with Sudan's declaration of a unilateral ceasefire.) Chad's President, Idriss Deby, called it "a kidnapping, pure and simple," and promised severe punishment. French Minister for Foreign Affairs and Human Rights Rama Yade (left) called the operation "illegal and irresponsible," stating that back in July all NGOs working in Darfur with whom she met agreed unanimously to condemn the operation. Laws on children and immigration were not followed; indeed, adoption's not even legal in Sudan and Chad. Not all the children may be from Darfur; some may be Chadians. And based on initial interviews with the children themselves, said Jacques Hintzy, President of UNICEF-France, not all in fact are orphans.
As international organizations and national governments registered denunciations, the children remained in limbo in Chad, receiving temporary care from UNICEF, the International Red Cross, and the Office of the United Nations High Commissioner for Refugees.
Rather than a peculiar event without ramification much beyond its facts, this was, according to a U.N. release, "not an isolated incident but one that was highly visible because of the size of the group of children." Problems have arisen across the globe, not only in African countries, but also in, for example, Cambodia and Guatemala. As might be expected, there's a treaty designed to avoid some of those problems. The Convention on Protection of Children and Co-Operation in Respect of Intercountry Adoption -- commonly called the Hague Convention on Intercountry Adoption (logo at right) -- was signed in 1993 and entered into force in 1995. Yet today less than 1/3 of the world's countries are states parties, and many of the states that have experienced problems are nonparties. The United States signed but hasn't ratified, though it passed legislation in 2000 aimed at implementing some of the treaty's provisions.
It'll require many more ratifications, and much more enforcement, before this international law has the desired effect.