Packing a Regional Punch

Yesterday, the Inter-American Commission on Human Rights released a 155-page Report on Immigration in the United States: Detention and Due Process. Concerned by the dramatic increase between FY 2001 and FY 2008 in the U.S. Immigration and Customs Enforcement's (ICE) detention of non-citizens, from just over 200,000 to over 375,000 detained, the IACHR decide to investigate U.S. immigration detention policies and practices to determine their compatibility with our international human rights obligations.
Based on site visits to four detention facilities and three thematic hearings on the rights of immigrants in the United States, as well as consultation with ICE officials, immigration experts, attorneys, detainees and their families, and analysis of relevant reports and research by state agencies, non-profits, and media, the IACHR focused on several areas of concern, highlighting the increasing criminalization of immigration detention and glaring failures in oversight:

• ICE's presumption of the necessity of detention even though immigration violations are governed by civil rather than criminal law;
  
• The disproportionate nature of the punishment, and the under-utilization of less punitive alternatives to detention;
• ICE's increase in partnerships with local and state law enforcement without sufficient oversight of their actions;
• The criminal rather than civil nature of the detention system;
  
• ICE's outsourcing of the detention system to private contractors without sufficient supervision; and
  
• The impact of detention on immigrants' due process rights, particularly the right to representation, especially with respect to unaccompanied children, the disabled, and those unable to represent themselves.
  

While the criticisms raised in the report are not new -- indeed, faithful readers have seen nearly all of them discussed on this blog -- the precision with which they are detailed and the sheer quantity of pages of paper pack a powerful punch (and offer a comprehensive resource for anyone researching the topic of immigration detention). And of course, their presentation by a regional intergovernmental organization adds legitimacy to the NGO voices that have long been raising concerns about the treatment of detained migrants in the United States.
Will the combined voices of its neighbors (including one of our own, Dinah Shelton) help to prod domestic immigration reform in the U.S.? Predictably, though disappointingly, the Obama Administration responded to a draft of the report by reiterating that many of the sources of law cited by the IACHR in the report, including the American Declaration of the Rights and Duties of Man, do not give rise to binding obligations on the United States. The IACHR jabbed back, noting in the report that "the American Declaration is indeed an instrument that generates international obligations in the framework of the [OAS] Charter" and declaring its intention to follow up to ensure the United States' full compliance with its recommendations "within the framework of its functions and competencies." And interestingly, Spain may be in the IACHR's corner, having funded the publication of the report, though demurring as to its own views on the issue. This IntLawGrrl, for one, eagerly awaits the IACHR's next punch . . .

In Defense of Human Rights Defenders

On this day in 1998, paramilitaries stormed into the office of Jesús María Valle Jaramillo (left), a Colombian lawyer and human rights defender who had been active in denouncing crimes committed by paramilitaries in conjunction with members of the Colombian army. Valle Jaramillo was executed. With him on this day 13 years ago were his sister Nelly Valle Jaramillo and a friend, Carlos Fernando Jaramillo Correa. These two individuals were tied, dragged across the office, and threatened with death.
The victims brought a case against Colombia before the Inter-American human rights system (the Commission and the Court). Remarkably, before the Commission, the state partially admitted its responsibility by omission, apologized, and offered reparations. The victims, however, argued that the terms of the admission denied the State's responsibility for its agents as co-authors, accomplices, or instigators in the alleged violations and thus did not fully contribute to the victims' desires for truth and justice. Accordingly, they pressed the Commission to forward the case to the Court.
Before the Court, Colombia was found responsible by omission for violations of the victims' rights to

• personal liberty (Article 7 of the American Convention on Human Rights),
• humane treatment (Article 5),
• life (Article 4),
• freedom of movement and residence (Article 22) and
• judicial protection (Article 25).

Drawing on the conclusions of its prior cases involving Colombia, the Court noted that the state originally encouraged the creation of “self defense” paramilitary groups, but that these groups began to "function beyond the law" and commit human rights abuses. The Court also noted that prior cases demonstrated numerous links between paramilitary groups and members of the armed forces such that the Colombian state bore direct international responsibility for the failure to comply with “its obligation to ensure human rights, [and, thus,] its duty of prevention and protection.” In addition, the Court found that

even though the State has adopted certain legislative measures to prohibit, prevent and sanction the activities of the “self defense” or paramilitary groups, these measures did not translate into the effective deactivation of the danger that the State helped create. [T]his accentuates the State’s special obligations of prevention and protection...

In addition, the Court made note of the special guarantees owed to human rights advocates in light of their work defending and promoting human rights. The Court acknowledged that Colombia had already implemented a series of measures to assist and protect human rights defenders including

• the legal recognition of human rights organizations;
• the formulation and implementation of the National Action Plan on Human Rights and International Humanitarian Law; and
• the provision of police protection to human rights organizations.

Nonetheless, full compliance with the obligation that states create the necessary conditions for the effective enjoyment and exercise of the rights established in the Convention,

is tied intrinsically to the protection and recognition of the importance of the role of human rights defenders, whose work is essential to strengthen democracy and the rule of law.

Thus, where a state is aware of a real and immediate danger to human rights defenders, a State

has the obligation to adopt all reasonable measures required to guarantee the rights to life, to personal liberty, and to personal integrity of those defenders who denounce human rights violations and who are in a situation of special vulnerability such as the internal armed conflict in Colombia.

With respect to reparations, the Court also undertook an interesting discussion of which family members should be recognized as "next of kin", reflecting the civil law's more expansive notions of dependents/beneficiaries.

For more on the risks undertaken by human rights defenders, see the programs at Amnesty International, the International Federation for Human Rights (FIDH), and Human Rights First.

Inter-American aid to Haitians

(Delighted to welcome back alumna Caroline Bettinger-López, who contributes this guest post)

Great news:
The Inter-American Commission on Human Rights granted, in large part, a request for precautionary measures to stop the U.S. deportation of Haitians under current circumstances of cholera, social unrest, political chaos, and general post-earthquake disorder.
The order, issued on Friday, stemmed from a request made last month by a coalition of groups. One is the new Human Rights Clinic at the University of Miami School of Law, for which I serve as founding Director. Also in the coaliton are the law school's Immigration Clinic, the Florida Immigrant Advocacy Center, the Center for Constitutional Rights, the advocacy nonprofit Alternative Chance, and the Stuart H. Smith Law Clinic + Center for Social Justice at Loyola New Orleans College of Law.
Our coalition's press release on the decision is here. More on the decision, captioned Precautionary Measures 5/11 — Gary Resil, Harry Mocombe, Roland Joseph, Evel Camelien, and Pierre Louis, United States, may be found here and here.
Unfortunately, the Inter-American Commission's decision only extended to persons with serious illnesses or U.S. family ties. This is nevertheless a tremendous victory:
► Most deportees will fall into one or both of these categories, particularly the "family ties" category; moreover,
► This result is not unexpected. The Commission's prior reports and recommendations on the merits of deportations cases have focused exclusively on these two categories of deportations (illness and family ties to the United States), and so the Commission chose to follow its past guidance on these specific points.
The organizational collaboration in this case has been a tremendously rewarding experience, and our Miami law students played a crucial role in every aspect of this process – from drafting legal memos and declarations, to interviewing family members of deportees and expert witnesses, to organizing the brief. Along with colleagues who teach in our Immigration Clinic, Becky Sharpless (far right) and Farrin Anello (near right), I have been truly impressed by the students' commitment, tenacity, and sharp legal minds.
Thanks too to the nearly 300 individuals and organizations who signed onto a January 10 letter in support of the petition – your voices made a difference!
I and several members of our team will be traveling to Haiti on Tuesday to document the stories of the 27 deportees and the condition of the police station cells in which they were held (and in which future detainees will presumably be held).
We will continue to move forward in our efforts to persuade the U.S. government to issue a moratorium on deportations until conditions in Haiti improve.

Speaking (Soft) Law to Power

Just in time for the one-year anniversary of the Haitian earthquake, and just when the cholera crisis made one think that life could not get any worse for the Haitians, the Department of Homeland Security is planning to resume deportations of Haitians with criminal convictions. Yesterday, several immigrants' rights and civil rights groups including the Center for Constitutional Rights, the Florida Immigrant Advocacy Center, and the human rights and immigration clinics at the University of Miami (the former run by guest/alumna Carrie Bettinger-Lopez) filed a petition for precautionary measures with the Inter-American Commission on Human Rights, asking that it prevent the United States from resuming deportations to Haiti.
Though the petition is long, it's worth a read if only just for the brief but devastating portrait of U.S. policy towards Haitian immigrants since the early 1960s. The stories of the named petitioners in the case demonstrate the ongoing cruelty of our immigration laws. None of the petitioners have been convicted of violent crimes; one is being deported for two counts of drug possession with intent to sell, for which he was sentenced to six months in prison. All face likely imprisonment upon arrival in Haiti simply for the fact of being criminal deportees from the United States. All have lived in the United States for at least a decade and have significant family ties with U.S. citizens and permanent residents. Most were permanent residents themselves before removal proceedings were initiated against them. None have close relatives in Haiti who survived the earthquake, and as a result will have nobody to bring them food and water in prison or advocate for their release.
An older petitioner who suffers from serious medical conditions has not received proper medical care in immigration detention in the United States; one can only imagine what will happen to him in Haiti. A younger petitioner has a 6-year old U.S. citizen son who suffers from a serious medical condition that has worsened since his father has been detained. Another is the sole financial provider for his four U.S. citizen and permanent resident children. Approximately 350 Haitians are in the immigration detention system; 100 were transferred to Louisiana in mid-December to await deportation to Haiti.
The petition alleges violations of five provisions of the American Declaration of the Rights and Duties of Man (sic). The deportation of these Haitians abrogates their right to life given the inhumane prison conditions they will face at home, particularly during the cholera epidemic, which has hit prisons particularly hard. Their removal also breaches their right to freedom from cruel, infamous, or unusual punishments due to the severe lack of medical care and social services in post-earthquake Haiti. The arbitrary detention these criminal deportees will face upon return violates their right to security of person. The petition also argues that the failure of the U.S. immigration system to offer a humanitarian defense to deportation, either by measuring the impact of removal on U.S. citizen family members or assessing the gravity of conditions in their home country violates the Haitians' right to family life and their right to due process and a fair trial.
Though aspirational in nature, the Inter-American Court and Commission on Human Rights have held the American Declaration's obligations to be binding on members of the Organization for American States, an approach necessitated by the United States' failure to ratify the American Convention on Human Rights (as always, in good company, alongside Cuba). Given the dearth of domestic options to appeal or even obtain information about ICE's deportation policies, and given the Inter-American Commission's recent decision finding that some aspects of U.S. immigration law violate the American Declaration, the Commission seems a wise choice of forum. But even if the Commission finds in favor of the petitioners, will the U.S. follow its precautionary measures? Unlike the Medellin case, here the execution of the orders in question lies in the hands of the federal government. And despite the recent shellacking, it remains a Democratic administration, one that will hopefully be willing to engage the human rights issues at stake.

Human Rights Defenders: In the frontlines

Dora “Alicia” Recinos Sorto (left) of El Salvador was shot dead in November 2009, while on her way home from doing laundry at a nearby river. She was eight months pregnant and holding her two-year-old child when she was killed. She had been active in opposing a mining operation in her community due to concerns about the mine's health and environmental impacts. Attacks on environmental activists throughout Latin America are on the increase, according to the Center for International Environmental Law (CIEL).
On 25 October 2010, the Inter-American Commission on Human Rights held a hearing on the situation faced by environmental activists in Central America. CIEL provides background information, as well as a link to a webcast of the hearing, here.
People who work to defend human rights are subjected to killing, death threats, torture, kidnapping, arbitrary arrest and detention, prosecution, defamation, burglary, and more. This year's theme for Human Rights Day -- December 10, the anniversary of the adoption of the Universal Declaration of Human Rights (prior IntLawGrrls posts) -- is human rights defenders who act to end discrimination.
Human rights defenders are targeted not only by governments but also by private individuals and entities. In her August 2010 report, UN Special Rapporteur on the situation of human rights defenders, Margaret Sekaggya (right) focused on state obligations under international law with respect to human rights violations against defenders by non-state actors. (photo credit)
People working to end rights abuses targeting gay men, lesbians, transgender and bisexual individuals are among those who work at great personal risk. On Human Rights Day this year, in the ECOSOC Chamber of the United Nations in New York, the Permanent Missions of Argentina, Belgium, Brazil, Croatia, France, Gabon, the Netherlands, New Zealand, Norway, The United States of America and the Delegation of the European Union will hold a High Level Panel Discussion on Ending Violence and Criminal Sanctions on the basis of Sexual Orientation and Gender Identity. UN Secretary-General Ban Ki-moon will deliver opening remarks and Archbishop Emeritus Desmond Tutu will deliver a special video address.
The Association for Women in Development (AWID), in collaboration with the Women Human Rights Defenders International Coalition, recently issued a new reference tool, List of Materials and Resources for Women Human Rights Defenders, which lists:

• research materials dealing with the security and protection of defenders;
• manuals on how to document and monitor violations of women’s rights;
• information on how to conduct trial observations;
• manuals on the rights and mechanisms available to women human rights defenders at risk;
• materials that address specific themes particularly relevant to women defenders, such as sexual orientation, religious fundamentalisms and conflict.
  

All in the Family?

Last month, the Inter-American Commission on Human Rights issued a groundbreaking decision finding that some aspects of U.S. immigration law violate the American Declaration of the Rights and Duties of Man. Specifically, the Commission held that provisions requiring mandatory deportation of a non-citizen convicted of an "aggravated felony" violate the right to family life, the rights of the child, the right to a fair trial, and the right to due process. The European Court of Human Rights and the UN Human Rights Committee have grounded their jurisprudence in similar cases on the right to family life, so this decision may expand the scope of human rights protections for non-citizens in the Americas.

While the grounding of the right to fair immigration proceedings in the right to family life and the rights of the child narrows the scope of protection, it is also, symbolically, a powerful description of the harms inflicted by harsh deportation policies. One of the petitioners in this case, Wayne Smith, moved to the United States from Trinidad and Tobago at the age 10 and had been a lawful permanent resident since 1974. Smith is married to a US citizen who survived breast cancer but lost her health insurance; they have a US citizen daughter. He and his wife owned a small business that employed over 15 people (most of whom were recovering drug addicts). Smith pled guilty to a non-violent drug offense (cocaine possession and attempted distribution) in 1990 (before such a crime was a deportable offense). He was denied a humanitarian waiver and deported in 1998; he returned in 1999 and challenged his deportation order based on a 2001 Supreme Court decision that may have made him eligible for a humanitarian waiver. He lost this challenge, and was deported again; in the meantime, his wife and child struggle to cover basic living expenses.
Among other arguments before the IACHR, the US government asserted its sovereign right under international law to expel criminal aliens; that the right to family life under Articles V and VI of the American Declaration protects only against state action that intends to harm family life, not secondary consequences of lawful, reasonable state actions (sound familiar?); and my personal favorite -- that because the United States is not party to the Convention on the Rights of the Child, prior IACHR analysis (pertaining to a party to the CRC) on the rights of the child with respect to their parent's deportation proceeding was not relevant.
The IACHR was not buying any of this. It found that the United States' sovereign rights of expulsion are not absolute, but are subject to a balancing test, drawing from elements laid out by the ECHR and UNHRC, including the strength of family ties, the duration of residence, the hardship of deportation to the family, and the nature and severity of the criminal offense (including age at the time of commission, time span of the offense, and subsequent rehabilitation). While the balancing test is to be applied flexibly, the IACHR emphasized strongly the importance of the best interest of the minor child. The IACHR also rejected the "intent to harm family life" limitation suggested by the US government, and noted that the American Declaration protects against foreseeable consequences that flow from state action.
Because the petitioners had no opportunity to a present humanitarian defense to deportation or to have rights to family considered and because the best interests of their US citizen children were not considered by the decision maker, the IACHR found a violation of Articles V (right to private and family life), VI (right to family life), and VII (rights of the child) of the American Declaration. Notably, the Commission held that heightened due process protections apply in immigration proceedings that include the sanction of deportation, and that the petitioners' deportations violated Article XXVI (right to a fair trial) and XVII (right to an effective remedy) of the American Declaration. The IACHR recommended that the U.S. allow petitioners to return, reopen their deportation proceedings, and present humanitarian defenses, as well as to allow the immigration judge to weigh these defenses. Finally, the Commission suggested that the U.S implement laws to protect non-citizen residents' right to family life. Now those would be some solid family values.

IACHR on the Death Row Phenomenon

On March 17, 2010, the Inter-American Commission on Human Rights (IACHR) deemed admissible a petition filed on behalf of a California inmate who has been on death row for 18 years but has yet to have his first appeal heard by the Supreme Court of California. (Case No. 12.74) The petition was filed by the University of San Francisco’s Frank C. Newman International Human Rights Law Clinic on behalf of two groups, Human Rights Advocates and fos*ters. The latter is a group formed in Switzerland to address the specific issues surrounding this inmate’s case.
The IACHR ruled that the petitioner does not have to exhaust domestic remedies to raise the claim that long delays on death row constitute torture because there are none really available to him under the procedures that exist in the United States. If he filed habeas corpus or other actions at this time, he would end up waiving claims that might arise after the appeal is heard since successive petitions are not allowed. Further, the IACHR referred to petitioner’s claim that the United States Supreme Court has repeatedly rejected arguments challenging prolonged detention on death row as cruel and unusual punishment.
The IACHR rejected the United States’ claim that the delay was due to petitioner’s requests for extension since those requests were tied directly to the loss of large portions of the trial transcripts by the trial court. It also mentioned long delays in the appointment of appellate counsel following the trials in California. The IACHR also ruled that the claim regarding the denial of medical care could not go forward without exhaustion of administrative remedies that are available to petitioner.
The IACHR will now consider the merits of the claim that long stays on death row constitute torture. Petitioner has cited to various provisions of the American Declaration of the Rights and Duties of Man that are violated by the death row phenomenon. The IACHR ruled that it is competent to examine the alleged violation of articles I, XVIII, XXIV, XXV and XXVI of the American Declaration. The petition cites to cases of the European Court of Human Rights and the Privy Council of Great Britain to support the claim that long periods on death row violate international human rights law. Petitioner will also clarify that the health care situation in the California prison system contributes to the intolerable conditions on death row.

Juárez: Women’s rights as human rights

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

Ciudad Juárez, Mexico, has been named one of the most dangerous cities in the world. More than 4,000 people have been killed in the city since January 2008, following a declaration of war between two drug cartels. Three persons with ties to the U.S. consulate were killed on the same day just last week. Federal troops have been called in to attempt to quell the latest round of violence.

But before the official drug war, there was a war on women, which Mexican authorities all but ignored.
According to the Rapporteurship on the Rights of Women of the Inter-American Commission, from 1993 to 2003 an estimated 268 women and girls were murdered, with only 20 percent of these crimes ending in trials and convictions, while the disappearances of an additional 250 women and girls also remained unsolved. (image credit) The number of women killed in Ciudad Juárez throughout the 1990s increased at twice the rate for men; the homicide rate for women in Juárez is reportedly more than three times as great as that in Tijuana, a border city of comparable size. The disappearances and murders have continued unchecked.

And the women’s deaths are brutal.

Many young women are found days or months after their disappearances, their bodies abandoned in vacant lots and bearing signs of torture, sexual assault, and, in some cases, mutilation. Mexican authorities’ investigations of these crimes have been said to be negligent and ineffective. And now, a human rights court has declared Mexico’s inaction to be a violation of Mexico’s international obligations to protect women and girls.

Last December 10, on World Human Rights Day, the November 16 decision of the Inter-American Court of Human Rights was made public. It held Mexico responsible for failing to respond to the disappearances of three of these young women. The seven-member Court, composed of “jurists of the highest moral authority and of recognized competence in the field of human rights” from member states of the Organization of American States, found that Mexico had violated human rights laws by failing to investigate these killings diligently and failing to punish officials who mishandled the murder investigations. The Court ordered the Mexican government to pay hundreds of thousands of dollars in damages to the families of the three victims. The case, Campo Algodonero, is named for the abandoned cotton fields in which the young women's three bodies were found.
In addition to damage awards, the Court provided an array of holistic remedies:
► a memorial in the field which gave the case its name,
► public recognition by Mexico of its fault in a ceremony and in print,
► a website listing all of the women who have disappeared since 1993,
► payment of money to the families, and
► a requirement that Mexico properly and fully investigate the murders and disappearances.
(Para. 602, subdivisions 1-26.) The Court will monitor Mexico’s progress on these remedies in a year. (Para. 602, subd. 26.)
Professor Caroline Bettinger-López' IntLawGrrls guest post summarized the decision. And Professor Regina Austin provided a take on the burgeoning filmography on the crimes.

The Court’s decision is a landmark.

It interprets not only the American Convention on Human Rights but also, for the first time, asserts its jurisdiction to consider violations of Article 7 of the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women (“Convention Belém do Pará”). (Paras. 37, 75-77.) The Court found Mexico violated provisions of both Conventions through its indifferent investigation and prosecution of the crimes.

The Court also found -- based in part on Mexico’s admissions in response to reports filed to comply with its obligations as a member state of the Convention on the Elimination of All Forms of Discrimination Against Women -- that the indifference to the violence against women here was part of a larger pattern of discrimination. The Court observed:

[T]he subordination of women can be associated with practices based on persistent socially-dominant gender stereotypes, a situation that is exacerbated when the stereotypes are reflected, implicitly or explicitly, in policies and practices and, particularly, in the reasoning and language of the judicial police authorities, as in this case. The creation and use of stereotypes becomes one of the causes and consequences of gender-based violence against women.

(Para. 401.)

The Court further concluded that

when investigating this violence, some authorities mentioned that the victims were ‘flighty’ or that ‘they had run away with their boyfriends . . . this indifference reproduces the violence that it claims to be trying to counter . . . [and] it alone constitutes discrimination regarding access to justice. The impunity of the crimes committed sends the message that violence against women is tolerated; this leads to their perpetuation, together with social acceptance of the phenomenon, the feeling women have that they are not safe, and their persistent mistrust in the system of the administration of justice.

(Para. 400.)

Given this context of structural discrimination, the Court ordered permanent education and training of public officials on human rights and gender with a gender-based perspective as well as educational programs for the general population. (Para. 602, subds. 22, 23.) The Court explained that

training with a gender perspective involves not only learning about laws and regulations, but also developing the capacity to recognize the discrimination that women suffer in their daily life. In particular, the training should enable officials to recognize the effect on women of stereotyped ideas and opinions in relation to the meaning and scope of human rights.

(Para. 540.)

In short, as Judge Diego García Sayán (below left) of Peru, Vice President of the Court, observed in a concurring opinion in the case:

Violence against women is a tragedy with different dimensions and symptoms. Without doubt, it is one of [the] most extended and persistent expressions of discrimination throughout the world, and it is reflected in conduct ranging from subtle and veiled manifestations to inhuman and abusive situations” like those experienced by the women in Juárez.

(García Sayán Conc. Opn., Para. 1.)

Aside from the implications of the decision for international law, however, the decision also provides a helpful barometer of domestic attitudes toward, and perceptions of, international human rights law.

In the United States, the decision frequently prompted three questions from American lawyers and journalists:

► Will the Court’s decision make a difference?

Days after the Court’s decision was announced, the Editorial Board of the El Paso Times, the newspaper of the sister city across the border from Juárez, opined that the decision, while of symbolic importance, was unlikely to make any real difference in the lives of the women in Juárez. At bottom, what the newspaper was openly wondering was: With dubious or untested enforcement powers, can an international court accomplish what Mexico could not – or would not – do alone? From the perspective of American law, this was an obvious question: in the United States, what good is a judgment if you cannot enforce it?

In the international realm, however, which relies on a pastiche of jurisprudence, diplomacy, and moral force, that is not quite the right question to ask.

International condemnation can be a powerful force in effecting change, provided a sense of social pressure and urgency is maintained. The Inter-American Commission (which, like the Inter-American Court, is charged with interpreting the American Convention) previously concluded that Brazil had violated human rights treaties by delaying for more than 15 years the prosecution of Maria da Penha’s abusive husband for her attempted murder. In response to the decision, and after advocates continued to lobby for change, Brazil enacted the Maria da Penha law to provide protection from and remedies for domestic violence at the national level.

► What significance are the non-monetary remedies?

American lawyers and courts focus not just on the enforceability of judgments, but on how much money the judgments allow a plaintiff to collect. Understandably, then, many lawyers asked me how much money the court had awarded. When I elaborated on the other remedies the Court had ordered, the reaction was decidedly less enthusiastic: what use is an apology, and how much could it matter? When a government has repeatedly denied either that there is a problem or that it can or should be responsible for its misconduct, a court-ordered apology is a healing act. Indeed, as the Campo Algodonero Court observed:

International case law has established repeatedly that a judgment declaring a violation of rights constitutes, per se, a form of reparation.

(Para. 582.) The society will have an opportunity to heal further when Mexican newspapers and the country’s government records publish the designated portions of the Court’s decision, when a memorial is placed in the cotton field site, and when Mexico acknowledges responsibility for its apathy and mishandling of the investigations of the girls’ killers at a public ceremony. And, when effective legislation and police procedures are in place, broader-based societal change will be possible. The remedies provided by the Court will then become tangible.

Indeed, Juárez' mayor has already responded to the portion of the Court’s decision requiring the placement of a monument in honor of all women and girls whose deaths went unredressed in the region. On January 30, the Las Cruces Sun-News reported that Juárez Mayor Jose Reyes Ferriz has called for artists nationwide to submit proposals for the memorial’s design on land donated by the city. According to the Sun-News, the victims’ families will be asked to review and approve the final design, which the mayor said

'must be something that represents what we feel about the deaths and that acknowledges our past errors, which were real and caused us pain. It must also demonstrate our commitment to never let this happen again in Juárez.'

► Why focus on violence against women and girls when Ciudad Juárez is now riddled with widespread violence?

Journalists to whom I spoke about the decision frequently asked why they should focus on violence against women and girls when violence was now so widespread in the city. Violence against women and girls deserves special attention for a number of reasons. First, as Nicholas Kristoff and Sheryl WuDunn persuasively argue in the book Half the Sky (recent review by IntLawGrrl Karen E. Bravo), empowering women and girls is the fastest way to lift the developing world out of poverty. The young women murdered in Juárez were students and workers drawn to the factories that had sprung up throughout the town in response to NAFTA. These were women who were killed while trying to improve their economic condition.

Moreover, how a society treats its most vulnerable members -- and low-income women and girls are especially vulnerable, particularly in developing countries – can provide an overall barometer of that society.

In Ciudad Juárez, violence against women and girls was a harbinger of things to come. Over fifteen years ago, women and girls began to be killed with brutality and impunity. Today thousands of people are killed indiscriminately in the city. A city that has been declared the most dangerous in the world. For both men and women.

Guest Blogger: Caroline Bettinger-López

It's IntLawGrrls' great pleasure to welcome Caroline Bettinger-López (left) as today's guest blogger. She contributes, below, the 1st post in a 2-part series concerning gender violence in Ciudad Juárez; specifically, an analysis of the recent Inter-American Court of Human Rights decision against Mexico. Tomorrow, in Part 2, guest blogger Regina Austin will review films treating that epidemic of violence.
Carrie is the Deputy Director of the Human Rights Institute and a Lecturer in Law and Clinical Staff Attorney for the Human Rights Clinic at Columbia Law School in New York City.
Carrie's research, activism, and teaching focus on international human rights law and advocacy, including the implementation of human rights norms at the domestic level. She devotes particular attention to Latin America and the United States, with particular respect to violence against women, gender and race discrimination, and immigrants’ rights.
Before joining Columbia, Carrie clerked for U.S. District Judge Sterling Johnson Jr., Eastern District of New York, and worked as a Skadden Fellow at the American Civil Liberties Union's Women’s Rights Project. As mentioned in her post below, she's filed Jessica Gonzales v. United States before the Inter-American Commission on Human Rights, on behalf of a domestic violence victim whose three children were killed after police in Colorado failed to enforce a restraining order against her estranged husband.
Carrie earned her J.D. from Columbia, and also holds a B.A. in anthropology from the University of Michigan.
Heartfelt welcome!

Humanizing Immigration Detention

This week has been full of news on the immigration detention front. In a disappointing move, last Friday, the Obama administration rejected a call to make legally enforceable rules ensuring minimum standards in immigration detention. On Tuesday, the Inter-American Commission on Human Rights (IACHR) issued a press release reporting on the Rapporteurship on the Rights of Migrant Workers and their Families' visit last week to immigration detention facilities in Arizona and Texas. That same day, the National Immigration Law Center, the ACLU of Southern California, and Holland & Knight released a 170-page report on rights violations in U.S. immigration detention centers. Yesterday, Senators Robert Menendez (pictured below right) and Kirsten Gillibrand (pictured below left) unveiled two new bills that aim to reform the immigration detention system, a fix that is long overdue. While the text of the bills is not yet available, and while any step to improve the disaster that is our immigration detention system is to be applauded, the bills fall short of addressing fundamental human rights violations identified by the IACHR.
The IACHR discusses the myriad problems raised by the Department of Homeland Security (DHS)'s policy of outsourcing detention to state, local, and private prison facilities. Often, as a pork barrel job-creation strategy, these facilities are located in rural areas, far from pro bono lawyers and support networks. The Rapporteurship's central concern with this subcontracting is that the consequent failure of accountability creates severe obstacles to ensuring that basic human rights are met. As a striking example of this problem, Maricopa County Sheriff Joe Arpaio (profiled here in last week's New Yorker) refused to allow the IACHR to visit immigration detention facilities, raising serious doubts about federal government's ability to hold local law enforcement accountable for violating fundamental human rights.
The Rapporteurship focuses on the impact of immigration detention on vulnerable populations -- asylum seekers and children, particularly unaccompanied minors. It notes the need to improve the process for identifying unaccompanied minors for claims of asylum, human trafficking, and other abuses. Moreover, the IACHR decries the broad use of detention for asylum seekers and their accompanying minor children, emphasizing the harsh psychological impact of this policy. Finally, it underlines the need to ensure pro bono counsel for unaccompanied minors.
The bills unveiled this week, the Protect Citizens and Residents from Unlawful Detention Act and the Strong Safe Treatment, Avoiding Needless Deaths, and Abuse Reduction in the Detention System (STANDARDS) Act, appear to address some, but not all, of these serious problems. Most importantly, the bills aim to improve standards within existing detention sites rather than ending the outsourcing of immigration detention. Again, I've not seen the text of these bills, but it appears that they don't address the needs of asylum seekers and trafficked children, nor do they call for an end to family detention and the detention of children.
The bills require detention facilities to be located where free or low-cost legal representation is available; it's not clear whether this provision would require DHS to end outsourcing to prisons in rural locations. In addition, the bills "restrict" transfers of immigration detainees that would impair an attorney-client relationship, addressing a particularly pernicious practice by DHS.
Stopping short of prohibiting detention of "vulnerable populations" (pregnant women, nursing mothers, people with serious health conditions) entirely, the first bill would require a decision on detention by DHS within 72 hours as well as appeal to an immigration judge. In a similar vein, rather than imposing strict limits on the detention of children and vulnerable individuals, the bills require that detention facilities accommodate the "unique needs" of these populations. That includes eliminating the use of solitary confinement and strip searches on children (!), a policy that one would hope would already be in place.
The second bill addresses basic human rights of immigrant detainees, including ensuring fundamental medical and mental health care; providing translation and legal information; allowing family, legal, and religious visitors and access to recreation; and preventing of physical and sexual abuse. The bill would require DHS to enforce these standards, including through a Detention Commission that would investigate facilities and report to Congress, but there's no sign that the law would authorize a private right of action to ensure that these standards are upheld. It's a shame that the Obama administration has refused to take that step towards accountability itself.
In short, it's a sign of progress to have serious and sustained attention paid to the human rights violations perpetrated in immigration detention, but we're still a long way from meeting international human rights standards when it comes to detained immigrants.

On networking

Serendipity:
Soon after publishing yesterday's "a little networking can't hurt" post, we received this comment giving a bit of backstory on the news flash, posted by IntLawGrrl Stephanie Farrior earlier this month, that our colleague Dinah Shelton was elected to the Inter-American Commission on Human Rights:

This was an all IntLawGrrls effort -- we hosted a diplomatic campaign luncheon for Dinah at Johns Hopkins SAIS with a number of the Caribbean and Latin American delegates, organized by IL program coordinator Tiffany Basciano, GWU Law '07, to help mobilize the votes. It is key to celebrate the merits of great candidates with some old door-to-door canvassing, to get more women in positions of note in international organizations.

The commenter, our colleague Ruth Wedgwood, not only is Edward B. Burling Professor of International Law and Diplomacy and Director of the International Law and Organizations Program at the Paul H. Nitze School of Advanced International Studies (SAIS), Johns Hopkins University, Washington, D.C., but also is a longtime member of the Human Rights Committee, which monitors state party compliance vel non with the International Covenant on Civil and Political Rights. Ruth's reminder that good "old door-to-door canvassing" is key to success is a point very well taken. Heartfelt thanks!

Dinah Shelton elected to Inter-American Commission on Human Rights

Last night at the Organization of American States General Assembly in San Pedro Sula, Honduras, Professor Dinah Shelton was elected to the Inter-American Commission on Human Rights to serve a four-year term beginning January 2010. (See below for other news from the OAS meeting.)
A staggeringly prolific author of prize-winning books and countless articles on international law, human rights, and international environmental law, she is a Vice President of the American Society of International Law, and has served as a legal consultant to the United Nations Environment Programme, UNITAR, the World Health Organization, the European Union, the Council of Europe and the Organization of American States, and was made an "honorary European" to join the European Council on Environmental Law.
Recognition of the signal contributions Dinah Shelton has made include the Elizabeth Haub Prize in Environmental Law, which commemorates the legacy of Haub (1889-1977), a pioneer in efforts to preserve the natural environment.
The Obama Administration announcement on March 3 nominating Shelton to the Inter-American Commission appears here.

Hearty congratulations, Dinah!

DC Residents: Lack of the Right to Equal Political Participation

Federal legislation on the economy, jobs and the workplace, health and safety, education, the environment and countless other matters are before the US House of Representatives and US Senate, where over half a million US citizens, residents of the District of Columbia, have no effective voting representation. Though they pay federal taxes, serve in the military, and are bound by all legislation passed by Congress and signed into law, they have no Senators, and their one Representative in the House does not have full voting rights. Washington DC has more residents than Wyoming, whose residents have two Senators and one Representative.
The District of Columbia is the only federal district in the Americas whose residents are denied equal voting representation in the national legislature. The constitutions of other states in the region all provide for full voting representation in the national legislative body: Buenos Aires, Argentina; Brasilia, Brazil; Mexico City, Mexico; and Caracas, Venezuela.
But as the United States said in 2005 in its report to the Human Rights Committee, which monitors implementation of the International Covenant on Civil and Political Rights, the US Constitution (art. 1, sec. 8) “gives Congress exclusive jurisdiction over the ‘Seat of Government of the United States’ which is the District of Columbia (D.C.)," and “[i]n light of the requirement in Article 1, section 2 of the Constitution that the members of the House of Representatives be chosen by the people of the ‘States,’ the Administration has taken the position that congressional representation for the District would require a constitutional amendment.”
It should be noted that the Administration did nothing to promote such an amendment. Click here for articles by scholars challenging the notion that a constitutional amendment is required.
A constitutional amendment campaign began back in 1978 to give District residents representatives and senators, but only 16 states ratified the amendment within the seven year time limit, bringing that effort to an end. Legislation to give DC one voting representative in the House is currently pending in both the House and Senate, and a hearing on the House bill was held on 27 January 2009. Click here list of witnesses and links to their testimony.
Advocates for full political participation for District of Columbia citizens have turned to several international human rights bodies for attention to this concern:
► Inter-American Commission on Human Rights
In 1993, the Statehood Solidarity Committee petitioned the Inter-American Commission on Human Rights (IACHR) of the Organization of American States, alleging violations of Article II (right to equality before the law) and XX (right to vote and to participate in government) of the American Declaration of the Rights and Duties of Man.
The IACHR found a violation of these rights, and expressed concern "that the absence of Congressional representation for the District of Columbia has had a disproportionately prejudicial impact upon a particular racial group" - African Americans - "in light of the considerable African-American majority that has evolved in the District’s population over the past 40 years."
► Human Rights Committee / ICCPR
The Human Rights Committee saw fit to address the lack of voting representation for DC residents in its Concluding Observations regarding the United States in 2006:
36. The Committee, having taken note of the responses provided by the delegation, remains concerned that residents of the District of Columbia do not enjoy full representation in Congress, a restriction which does not seem to be compatible with article 25 of the Covenant. (articles 2, 25 and 26)
The State party should ensure the right of residents of the District of Columbia to take part in the conduct of public affairs, directly or through freely chosen representatives, in particular with regard to the House of Representatives
► Committee on the Elimination of Racial Discrimination (CERD)
The US report to the Committee on the Elimination of Racial Discrimination in 2007 stated, inter alia: “Because the United States was founded as a federation of formerly sovereign states, this provision [regarding the District of Columbia] was designed to avoid placing the nation’s capital under the jurisdiction of any one state. Thus, the reason for this provision was governmental structure, not racial.”
The Civil Society Shadow Report to CERD, however, submits that the lack of equal political participation constitutes a violation of Article 5( c) of the Convention on the Elimination of All Forms of Racial Discrimination: “Because a majority (as much as 75%) of the District’s residents is African-American, this disfranchisement is a violation of Article 5, which requires universal suffrage.”

Reparations for "terrorists"?

(In this guest post, Lisa Laplante discusses her recent article examining whether the award of reparations victims of human rights violations turns on the status of those victims.)

Should victims of human rights violations with alleged or certain ties to groups that use terrorism receive reparations? This complex and sensitive dilemma has begun to arise in countries implementing reparation programs pursuant to the recommendations of their truth and reconciliations commissions.
Reparations law has special relevance to the transitional justice paradigm, as countries seek to respond to widespread human rights abuses — situations in which the line between victim and perpetrator often blurs. New case studies reveal the serious challenges of implementing administrative plans of reparations that first require that recipients be qualified. While some issues are purely technical and logistical, others — those that hold potential to generate new forms of harm and even new rights violations — beg further discussion and clarification. Certainly, as the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. In the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever-growing jurisprudence with respect to remedies law. Such is the case with equity's Clean Hands Doctrine, which dictates that an injured party's wrongdoing may limit his or her claim to reparations. When applied in cases in which victims of human rights violations seek relief, however, this doctrine conflicts directly with the well-established legal principle of nondiscrimination.
Should a person's innocence or guilt factor into whether he or she deserves to be repaired?
In answering this question, it is important to ask some others:
► What actions, allegiances and beliefs constitute a basis for exclusion, as well as what the standard is for determining wrongdoing-such as a firm criminal conviction or mere allegations?
► What if a person suffered torture, rape, unjust imprisonment and perhaps even was disappeared or killed, but was alleged to have connections to "subversive" and "terrorist" organizations, sometimes called "illegally armed groups"?
► Who determines whether such a person qualifies as a victim with a right to reparations?
There is only limited and inconsistent jurisprudence on the Clean Hands Doctrine in international law. In this article I argue that, in relation to human rights law, the Clean Hands Doctrine does not and should not apply. The very nature and purpose of human rights protections and guarantees protect against as much state abuse and domination as against state negligence. Thus, a state’s failure to observe international norms should result in the victim received a remedy for harm suffered regardless of the status of the victim. A contrary standard would read that, but for the wrongful conduct of the person, he or she would not be subject to state control, and thus would not have suffered harm. In other words, a person who committed a wrong would lose the protections enjoyed by “non-delinquents.” This would create a two-class tier of rights holders.
Given that the overarching purpose of human rights protection is to curb state abuse, one could argue that carving out exceptions where human rights violations have no consequences presents a worrisome precedent. Arguably, this approach has been assumed by the organs of the inter-American system, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (below left). Although neither of these international human rights bodies has ruled directly on the issue, decisions issued by each suggest that neither body considers the character or status of the victim as a factor relevant to the determination of reparations. In effect, this reading supports the general rejection of the Clean Hands Doctrine in relation to reparations for human rights violations.
Nonetheless, states that have confronted politically divisive transitions from repressive regimes and internal armed conflict have not necessarily assumed this general rejection of the Clean Hands Doctrine.
For example, a transitional justice project was launched in 2001 by Peru's Truth and Reconciliation Commission (above right). (photo credit) Formed in the wake of twenty years of internal armed conflict between the state and illegally armed groups, the Commission presented its Final Report in 2003, and included recommendations for a Plan Integral de Reparaciones (Integral Plan of Reparations), which adopts a partial rejection of the Clean Hands Doctrine. Yet, as the Peruvian government now attempts to implement this Plan, it confronts the controversial and divisive issues related to how it can, and must, approach victims of state abuse who allegedly have, or had, ties to illegally armed groups. Due to political pressure, the national legal norms codifying the Plan include exclusionary clauses that reflect a full adoption of the Clean Hands Doctrine.
Peru's policy has generated much tension with respect to the implementation of the law. The situation grew more contentious when the inter-American system ordered reparations for survivors/victims of a massacre that occurred in 1992, during a state lockdown of a prison in which persons were held on suspicion of terrorist activity (many had not been convicted). This case, Miguel Castro Castro Prison v. Peru (2006), threatened to unravel the implementation of domestic reparations.
Local rejections of equitable reparations present serious political challenges for emerging democracies as they attempt to build the rule of law and respect for human rights.

Knocking Down That Wall . . .

My friend and former colleague Denise Gilman (pictured left), a Clinical Professor at the University of Texas School of Law, has submitted a request for a hearing on the Texas/Mexico border wall to the Inter-American Commission on Human Rights (ICHR). Gilman has pulled together an impressive Working Group on Human Rights and the Border Wall at UT, comprised of professors and students in law, anthropology, and environmental science, including Gilman's husband, Ariel Dulitzky, the former Assistant Executive Secretary of the ICHR. This is a seriously dynamic human rights duo; Dulitzky now runs the Rapoport Center for Human Rights and Justice at UT (recent law grads take note of the great fellowship opportunity at the Center). But I digress; in June, Gilman and her Working Group submitted briefing papers to the Inter-American Commission outlining the human rights violations resulting from the border wall: violations of the right to property and equal protection; violations of the government's obligation to consider harm to the environment when undertaking public projects; and violations of the rights of indigenous communities. As the United States, in typical fashion, signed but never ratified the American Convention on Human Rights, the request relies on the American Declaration of the Rights and Duties of Man [sic], which, while not a legally binding treaty, is viewed by both the Inter-American Court and the Inter-American Commission on Human Rights as a source of international obligations for all members of the Organization of American States, including the U.S. In any case, the Working Group's arguments are creative and well thought out: that the United States is taking private property that has been held by families for generations without "properly considering other alternatives for controlling the border"; that the land of small landowners who are disproportionately poor, Latino, and less educated will be taken while more lucrative properties will remain intact; that the wall will cause severe environmental degratation of the Rio Grande river and its wildlife; and that the wall will harm Native American communities that "live and practice their traditional cultures and religions along the Texas/Mexico border." Moreover, because the "United States has . . . stripped away, in relation to the border wall, judicial protection that it otherwise provides" for indigenous rights and the environment, "possibilities for a court challenge to the taking of property and construction of the border wall are extremely limited", and the Working Group thus posits a violation of Art. XVIII of the American Declaration, guaranteeing the right to judicial protection. While a hearing before the ICHR won't produce a ruling that's enforceable in U.S. courts, the Working Group's painstakingly collected evidence should have at least some shame value, and might inspire other OAS members to condemn the wall, as Chile, Mexico, and 26 other countries already have done. You go, Grrl.

Detainee petitions Inter-American Commission

Guantánamo detainee Djamel Ameziane has complained to the Inter-American Commission on Human Rights (IACHR) that his 6-and-1/2-year-detention at Camp Delta, without charge or judicial review, violates several rights protected by the 1948 American Declaration of the Rights and Duties of Man, to which the US is a party. The US has also recognized the IACHR, though is not in the habit of listening when it suggests that the US is violating the Declaration. As Beth Van Schaack pointed out, the Commission has several times reiterated precautionary measures that have gone unheeded with respect to US detention of "enemy combatants" at Guantanamo, CSRT proceedings and refoulement of prisoners. Like the proceedings seeking those measures, Ameziane's complaint was filed by the Center for Constitutional Rights (CCR): since the Supreme Court's June 2008 ruling in Boumediene v. Bush recognizing Guantanamo detainees' right to challenge their detention, "neither Mr. Ameziane nor any other Guantánamo detainee has yet had a hearing on the merits of his case." Under such circumstances, Ameziane may well satisfy the IACHR procedural rule requiring exhaustion of domestic remedies, except where unavailable as a matter of fact or law, i.e., where domestic legislation doesn't afford due process of law or the petitioner has been denied access to or prevented from exhausting the remedies that do exist, or where there has been unwarranted delay. Given the lack of attention the US has paid to the IACHR throughout the "war on terror," a decision in favor of Ameziane might be for naught. But what if the president who takes office in January decides to provide hope even to Guantanamo detainees and introduce real change, that is, follow IACHR recommendations?