Human Rights Committee on freedom of speech

The Human Rights Committee, which interprets and enforces the International Covenant on Civil & Political Rights, has circulated a new draft General Comment (slated to be number 34), which will replace General Comment No. 10, which dates from 1983, on freedom of opinion and expression. (General comments are authoritative interpretations of human rights treaties by treaty bodies). Given events in the Middle East and North Africa, as well as the WikiLeaks controversy, this study could not be more timely.
The draft Comment makes the following key points:
► Reservations to Article 19(1) ("Everyone shall have the right to hold opinions without interference") would be incompatible with the object and purpose of the Covenant. In this regard, the Committee also notes that even though Article 4 does not list the Article 19 rights of opinion and expression as non-derogable, it would never be necessary to derogate from such rights, even in a time of national emergency. The Committee has taken a similar approach to the right to seek judicial redress, which is deemed essential to enjoying the Covenant's expressly non-derogable rights even though it is not listed in Article 4 as non-derogable. The Committee did not offer its specific views, however, on how the omnibus non-discrimination clause in Article 2 should be reconciled with the non-derogation clause in Article 4, which does not list "political opinion" as a ground on which derogations are prohibited. Nor does it help with understanding the difference between freedom of thought contained in Article 18(1), which is expressly non-derogable per Article 4 and not subject to clawback by Article 19(3), and freedom of opinion contained in Article 19(1).
► In keeping with general principles of state responsibility, the Committee notes that a state may be in breach of the Covenant in a situation in which any branch of the federal or sub-federal government fails to respect freedoms of opinion and expression. This may also be the case with respect to "semi-state entities," although the Committee does not employ the term "non-state actor." It only notes that states parties are also obliged to ensure that all persons are protected from private action that might impair the enjoyment of freedoms of opinion and expression. Since the landmark Velásquez Rodríguez v. Honduras, case before the Inter-American Court of Human Rights, treaty references to the obligation of states to "ensure" rights have served as a hook to ascribe state responsibility for private action where states are not diligent in protecting individuals from violations by private parties (see prior posts here, here and here). It is not clear if this formulation is meant to be less far-reaching than standard attribution theories of state responsibility.
► It is a breach of the Covenant to criminalize the holding of an opinion. Here, the Committee cites its Views in the case of Faurisson v. France involving France's Holocaust denial legislation (a.k.a. "contestation de crimes contre l'humanité"). (See prior post here). In that case the Committee found no breach of the Covenant where a conviction under this legislation

did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others.

The Committee concluded that any restriction on the petitioner's freedom of expression was permissible under Article 19(3), which states that

The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others...

The Committee determined that the law was "necessary" to advance the struggle against racism and anti-semitism. Article 19(3)'s clawback clause lays down conditions under which restrictions to the right to expression and to seek information may be imposed:

• the restrictions must be "provided by law";
• they may only be imposed for one of the enumerated purposes [to respect the rights or reputations of others, national security, ordre public, and public health or morals]; and
• they must be justified as being "necessary" for that State party for one of those purposes.

► The Committee lists a number of forms of expression that are guaranteed by the Covenant, including

political discourse,

commentary on public affairs,

canvassing,

discussion of human rights,

journalism,

cultural and artistic expression,

teaching, and

religious discourse.

"Commercial advertising" remains bracketed in this list, suggesting a lack of consensus on this point.

► The Committee notes that the Covenant expressly provides that

persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with other members of their group, to use their own language.

► Apropos of WikiLeaks, the Committee noted the requirement that states parties allow for a free press and other media "to comment on public issues without censorship or restraint and to inform public opinion" and the corollary right of the public to receive such information. With no specific reference to WikiLeaks, the Committee again invokes Article 19(3) and notes that

It is not compatible with paragraph 3, for instance, to invoke treason laws to prosecute journalists, researchers, environmental activists, human rights defenders, or others, for having disseminated information of legitimate public interest.

The Committee reminds states parties that

Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, must be compatible with paragraph 3.

► Given the global controversy over the access to information about reproductive rights (including information about how to protect oneself from sexually-transmitted diseases), it would be useful for the Committee to cross-reference General Comment No. 14 issued in 2000 by the Committee of the International Covenant on Economic, Social and Cultural Rights, which monitors the sister treaty to the ICCPR. There, the IECESC Committee identified the accessibility of information to be fundamental to the right to the highest attainable standard of health as set forth in Article 12 of the ICESCR. In this regard, the Committee observed that:

Information ... accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality.

► The Human Rights Committee particularly noted the high value associated with free expression concerning public figures and institutions and called into question laws addressed to defamation of the head of state or regime. The draft Comment does not specifically condemn criminal defamation laws, but it does note that states parties should avoid "excessively punitive measures and penalties" and "consider decriminalisation of defamation." (See prior post here).
► The Committee warns against monopolistic control of the media "that may be harmful to a diversity of sources and views."
► The Committee notes the risk to freedom of speech rights posed by many counter-terrorism measures and in particular laws aimed at prohibiting the “encouragement of terrorism” and “extremist activity” or the "praising" of terrorist acts. The Committee is silent, however, on material support legislation, e.g., 18 U.S.C. § 2339A in force in the U.S. This legislation criminalizes the provision of "material support or resources" to terrorists, which includes "training" and "expert advice or assistance."
► With regard to hate speech legislation, the Committee determines that many forms of hate speech do not rise to the level of "advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence" which must be prohibited by law according to Article 20 of the Covenant, which also calls for prohibitions on propaganda for war.
The Human Rights Interest Group of the American Society of International Law made detailed suggestions on the draft General Comment, which are available here.

'Nuff Said

(Taking context-optional note of thought-provoking quotes)

Women are off the U.S. diplomatic map. A look at 200 WikiLeaks cables finds no mention of our rights or struggles, says Corinna Barnard, and a recent check of the ... Council on Women and Girls site found a top story about romping reindeer.

-- Women's eNews, in an article citing correspondent Barnard (right) (credit for photo by Michael Priest). Barnard looked at 200 cables dispatched from 40 different countries, working "with a list of stories that Women's eNews had produced about women's rights in Afghanistan, Iraq, Iran, Saudi Arabia and other hot spots to determine whether U.S. diplomats were addressing these issues in any way." She found "nothing about poverty and women, reproductive rights, etc."

Kimberley Process & Zimbabwe diamonds

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The opening and expansion of global markets has created and exacerbated resource curses, the phenomenon in which natural resource abundance creates governance problems.
Yet international legal scholarship has been slow to recognize the relationship between freer trade and the financing of internal conflicts. My recent article, "Regulating Resource Curses: Institutional Design and Evolution of the Blood Diamond Regime," published earlier this year in the Cardozo Law Review, looks closely at a recent effort to address the global trade in so-called blood diamonds as a potential model for resource curses more generally.
I develop a case study of the Kimberley Process, an international diamond tracking regime (prior IntLawGrrls post), by investigating both the scope of the institution’s regulatory reach as well as the mechanisms by which members promulgate and enforce those regulations. The article focuses on the unique coalition of nongovernmental organizations, corporations, and states, and on the unusual international arrangement upon which they agreed.
Evidence from the evolution of that institution suggests that although designers may indeed seek to maximize their own interests, what determines whether an institution can regulate effectively, and when it may move beyond the designers’ original interests, are legalization elements of that international institution. These include:
► The obligations the regime creates;
► The precision with which those obligations are defined; and
► The possible delegation of interpretive and enforcement efforts.
In accumulating and assessing this evidence, my article contends that while skeptics may correctly identify the Kimberley Process’s initial alignment with state and corporate interests, this lightly legalized regime provides an opportunity for substantial progress on human rights. Although the Kimberley Process might appear as an attempt to whitewash state and corporate abuses, over time, the institution can -- even though it need not necessarily -- evolve to address both the rebel-induced and state-inflicted human rights violations related to the diamond trade.
The article acknowledges 2 factors:
► The importance and potential stickiness of initial design choices; and
► The fact that institutional evolution in favor of issue expansion and greater enforcement is merely feasible rather than inevitable.
Thus, this article demonstrates some of the possibilities and limitations of looking to the Kimberley Process as a model for resource curses, and more generally for other areas in which NGOs seek to align state, corporate, and human rights interests.
Developments which occurred after my article went to press suggest that the Kimberley Process has in fact tried to address state-initiated human rights abuses. In so doing, it is facing some substantial state resistance:
► In 2009, the Kimberley Process sanctioned Zimbabwe for bad behavior in the newly discovered Marange diamond fields. Rather than expel Zimbabwe, members suspended its exports. By November 2009, Zimbabwe agreed to a joint work plan to restore compliance by eliminating smuggling, allowing greater monitoring, and reducing military abuses against civilian miners. Despite these promises, Human Rights Watch reported that as late as September of 2010, soldiers still control large portions of these Zimbabwe fields and continue to violate the human rights of the local miners. (credit for 2006 photo by Tsvangiray Mukwazhi/Associated Press of women and men miners at Marange)
► A November 2010 Kimberley Process meeting failed to reach agreement on whether to lift all export limitations, and thus kept the suspension in place. Zimbabwe’s monitor responded by unilaterally certifying millions of diamonds which are already beginning to make their way to market.
►Many speculate that a December 2010 WikiLeaks posting will influence an ongoing Kimberley Process meeting on the Zimbabwe export question. The 2008 U.S. government cable states:

'In a country filled with corrupt schemes, the diamond business in Zimbawbe is one of the dirtiest.'

► Meanwhile, NGOs such as Global Witness and World Vision have stopped short of calling a boycott, but asked consumers and retailers to act more vigilantly in ensuring that diamonds purchased over the holiday season have not funded violence.
If Zimbabwe continues on its current path of non-compliance, or pulls out of the process entirely, many fear the diamond industry will return to the bad practices of the 1990s, in which widespread human rights abuses were common.
Others suggest, however, that targeted pressure campaigns could convince industry networks to reject working with those that trade in these blood diamonds and persuade individual consumers not to purchase them.
Only time will tell. But this article illuminates the institutional mechanisms that will facilitate success or failure on the Zimbabwe problem.

Guest Blogger: Kathleen Clark

It's IntLawGrrls' great pleasure to welcome Kathleen Clark (left) as today's guest blogger.
Kathleen is Professor of Law and 2010-11 Israel Treiman Faculty Fellow at Washington University School of Law, St. Louis, Missouri, where teaches and writes about government ethics, national security law, legal ethics, and whistleblowing. For more than a decade, she has offered a course she created, on governmental ethics; in addition, she created a course on comparative whistleblowing, which she taught at the Summer Institute for Global Justice, Utrecht University, the Netherlands.
A 2004 Washington Post op-ed on the Department of Justice "torture memo," coauthored with our colleague Julie Mertus, led to Kathleen's testimony before Congress and her publication of "Ethical Issues Raised by the OLC Torture Memorandum," 1 Journal of National Security Law & Policy 455 (2005).
In her guest post below, Kathleen makes the case for the need for "someone in government will provide some clarification -- and some sanity" on the issue of WikiLeaks disclosures, an issue on which IntLawGrrls featured 2 guest posts last week, by Judge Patricia M. Wald (here) and by Professor Mary Ellen O’Connell (here).
Kathleen earned her B.A. and J.D. degrees from Yale University, and clerked for the Honorable Judge Harold H. Greene, U.S. District Court for the District of Columbia. She then served as counsel to the U.S. Senate Judiciary Committee, working on issues of white collar crime.
A member of the American Law Institute, Kathleen's an advisor to the institute’s Project on Principles of Government Ethics. She's also a consultant to the Administrative Conference of the United States and past Chair of the National Security Law Section of the Association of American Law Schools.

Heartfelt welcome!

Information Security & Fear-Mongering about WikiLeaks

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

The response of the White House's Office of Management and Budget to the latest WikiLeaks document dump gives us a peek both into the sometimes surreal standards for dealing with information that the executive branch deems to be classified, and at the fear-mongering some government officials are engaging in.
According to CNN, on December 3rd, OMB instructed executive branch agencies to notify all government employees and contractors that they should not view any documents that are marked as classified using their work computers that access the web via non-classified government systems.
OMB distinguished “documents that are marked classified” from “news reports . . . that . . . discuss the classified material.” Employees can use non-classified government systems to access news reports that include classified information, but must not use those systems to access the classified documents themselves. This distinction might seem silly to an outsider, but the government imposes special security measures for its computers that store classified documents, and takes pains to ensure that its computers without these security measures do not have any classified documents. This system of segregating classified documents is complicated and costly. But so far, so good.
OMB also suggested (somewhat ambiguously) that federal employees and contractors without the proper clearances and the "need to know" the information should not access Wikileaks' classified information. Specifically, OMB stated:

'Federal employees and contractors shall not access classified material unless a favorable determination of the person's eligibility for access has been made by an agency head or the agency head's designee, the person has signed and approved [a] non-disclosure agreement, [and] the person has a need to know the information . . . .'

(Here and in quotes below, italics added.)
At least one agency has gone further, asserting that government employees -- and prospective employees -- should not access WikiLeaks classified documents even from their home computers.
According to Democracy Now, the State Department instructed employees of the U.S. Agency for International Development as follows:

'Accessing the Wikileaks web site from any computer may be viewed as a violation of the SF-312 agreement.'

According to the SF 312 (a non-disclosure agreement), violation can result in termination of a security clearance and employment.
The State Department memo also warned USAID employees:

'Any discussions concerning the legitimacy of any documents or whether or not they are classified must be conducted within controlled access areas (overseas) or within restricted areas (USAID/Washington)... The documents should not be viewed, downloaded, or stored on your USAID unclassified network computer or home computer; they should not be printed or retransmitted in any fashion.'

In other words, just accessing the WikiLeaks website from a home computer could result in the loss of a security clearance and job.
Steven Aftergood, Director of the Federation of American Scientists Project on Government Secrecy -- a transparency activist who has been critical of WikiLeaks -- characterized the State Department memo as "insane."
It is not at all clear how accessing the WikiLeaks documents on a personal home computer would constitute a violation of an agreement not to disclose classified information. On the other hand, the SF 312 asserts that

'unauthorized retention . . . of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.'

This does not appear to be a one-off mistake by an overzealous State Department official. At least one government contractor has similarly warned its employees:

'Reviewing information on WikiLeaks or subsequent disclosures is strictly prohibited. ... [P]ersonnel are prohibited from accessing WikiLeaks whether on company-issued or on personal equipment.'

The fear-mongering applies not just to contractors but also to prospective government employees.
Democracy Now reported that the Office of Career Services at Columbia University's School of International and Public Affairs told its students that an alumnus working at the State Department

'recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government.'

Maura Kelly, Assistant Dean for Career Development and Public Service at Boston University Law School, sent a message to BU students and alumni that

'[t]he documents released by Wikileaks remain classified; thus, reading them, passing them on, commenting on them may be seen as a violation of Executive Order 13526, Classified National Security Information. See Section 5.5 (Sanctions).'

She specifically warned:

'DO NOT post links to the documents or make comments on any social media sites.'

Are these just over-reactions by people who are not familiar with the government's information security standards?
Or do these warnings reflect a concerted effort to prevent Americans from accessing and discussing the WikiLeaks documents that are now available on the web?
I hope that someone in government will provide some clarification -- and some sanity -- on this issue soon.

...and counting...

(Occasional sobering thoughts.) It's been a week for "surprise" visits to conflict zones: U.S. President Barack Obama to Afghanistan's Bagram Air Base in Afghanistan, German Foreign Minister Guido Westerwelle to Iraq's officials, in Baghdad. Can't help but wonder the degree to which recent leaks about attitudes toward world leaders prompted the face time.
Also worth pondering is the image at left. Not a poor imitation of Rothko, but rather a color-coded charting of deaths in Iraq. Orange = civilians.

With that in mind, here's the casualty count since our last such post 6 weeks ago:
► The U.S. Department of Defense reports that coalition military casualties in Afghanistan stand at 1,416 Americans, 345 Britons, and 484 other coalition servicemembers. That's an increase of 68, 4, and 5 casualties, respectively, in the last 6 weeks. The total coalition casualty count in the Afghanistan conflict is 2,245 service women and men.
► Respecting the conflict in Iraq, Iraq Body Count reports that between 99,021 and 108,094 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. That represents an increase of between 436 and 500 persons since 6 weeks ago. According to the U.S. Defense Department, 4,429 American servicemembers have been killed in Iraq, representing 3 servicemember deaths in the last 6 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)

International Law & WikiLeaks

(Delighted to welcome back alumna Mary Ellen O’Connell (below right), who contributes this guest post on release of classified documents by WikiLeaks, an issue on which alumna Patricia M. Wald posted yesterday)

I generally share Judge Wald’s critical view of WikiLeaks’ action.
In thinking about the matter from the perspective of international law, so far I see three areas of special interest:

1. Prosecution
State Department Legal Adviser Harold Koh, Attorney General Eric Holder, Secretary of State Hillary Clinton, and others have all discussed prosecuting “those responsible” for the document dump. The main figure associated with WikiLeaks is the Australian, Julian Assange. He is thought to be in hiding somewhere in Europe. Interpol has issued an international arrest warrant for Assange, to send him to Sweden to face questioning. I have seen no reports of a U.S. request for an international arrest warrant. (credit for logo of Interpol Red Notice)
My first thoughts in this episode have concerned on what basis Assange could be brought to the U.S. for prosecution. If he comes into Swedish custody, for example, and the United States then requests his extradition, NPR is reporting that the basis of criminal prosecution would likely be the Espionage Act. (See, e.g., 18 U.S.C. sec. 798 “Disclosure of Classified Information”.)
The Espionage Act seems to be narrowly drafted and to contain details that might well make it difficult to meet the requirements of U.S. extradition treaties.

2. Terrorism
Perhaps for the issues raised in Point 1, U.S. Rep. Peter King (R-N.Y.) is calling for WikiLeaks to be declared a terrorist organization? I wonder if Rep. King believes that declaring WikiLeaks a terrorist organization means that the U.S. will treat Assange as an “enemy combatant?” International law has no authority to support such assertions. We can hope that the administration will definitive reject them, and even reconsider other cases where criminal suspects are currently being treated as “enemy combatants.” (See my soon-to-be forthcoming article, “The Choice of Law Against Terrorism.”)

3. Diplomacy
We can further hope that this case will wake up governments around the world to greater vigilance on behalf of international law.
We should all be very concerned that certain Middle Eastern governments want to see military force used against Iran. There is no right to use military force against a state for the possession of even unlawful weapons. (See my “The Ban on the Bomb and Bombing, Iran, the U.S., and the International Law of Self-Defense”.) This is only one example. The documents are full of issues we in international law should be bringing to public awareness.
Ironically, in some cases involving the United States and non-compliance with international law, I wonder if governments are going to read the unflattering documents and either end cooperation or pressure the United States into ending non-compliant conduct? I have written about U.S. uses of military force in Yemen that conflict with international law. Is Yemeni President Ali Abdullah Saleh going to continue to cooperate in this after what has been said about him?
And, of course, all of us in international law need to be concerned about the attempt to steal private information concerning the Secretary-General of the United Nations.
The gratuitous gossip in some of the communications is also striking — it made me think of the Rolling Stone interview with General Stanley McChrystal. (prior IntLawGrrls post)
The WikiLeaks decision to release this material was reprehensible. Hopefully the right lessons will be learned from it with respect to the conduct of diplomacy and the goals of U.S. foreign policy.

Wald on WikiLeaks

(Honored to welcome back alumna Patricia M. Wald, former federal and international judge, and former member of Presidential commission on U.S. intelligence, who contributes her thoughts on the unauthorized WikiLeaks release of U.S. diplomatic cables and military documents, some of which have been published in The New York Times, the Guardian, Le Monde, El Pais, and other media)

I think that freelancers do have some duty not to do things that will inevitably result in making any rational course of foreign relations more difficult.
Though it may be difficult to draw a precise line, I do see a difference between publishing the Pentagon Papers (after the fact), which disclosed the perfidy of the Vietnam War, and just dumping all sorts of personal calumny about foreign leaders – though part of these “dumps” may well have been motivated, like the Pentagon Papers, to show the futility of our sojourn in Afghanistan. (It seems almost impossible that the dumps aren’t violative of all sorts of laws.)
The episode also illustrates how our courtship with technology can be ruinous, by making it so easy to gain access to and disseminate so much classified material through young and immature intelligence operators.

... and counting ....

(Occasional sobering thoughts.) This weekend's big news regarding U.S. involvement in armed conflicts is, of course, the release by WikiLeaks of 400,000 pages of Iraq War documents. News outlets such as The New York Times (here) and Le Monde (here) have devoted considerable space to this disclosure, even as other reporters, groups, and private individuals sift through the documents available here.

One disclosure bears particular relevance to this "...and counting..." feature, which we've posted periodically since our founding. An Associated Press story reports that the documents reveal far more U.S. military attention to civilian cases a few years back than was admitted at the time.

Revealed, according to the AP:

[A] higher death toll than previously believed.
Iraq Body Count, a private British-based group that has tracked the number of Iraqi civilians killed since the war started in March 2003, said it had analyzed the information and found 15,000 previously unreported deaths. That would raise its total from as many as 107,369 civilians to more than 122,000 civilians.

The article then quotes Jameel Jaffer (prior post) of the American Civil Liberties Union:

'The American public has a right to know the full human cost of the wars in Afghanistan and Iraq. A lot of this information should have been released to the public a long time ago.'

With these developments in mind, here's our count since our last such post 5 weeks ago:
► The U.S. Department of Defense reports that coalition military casualties in Afghanistan stand at 1,348 Americans, 341 Britons, and 479 other coalition servicemembers. That's an increase of 68, 6, and 16 casualties, respectively, in the last 5 weeks. The total coalition casualty count in the Afghanistan conflict is 2,168 service women and men.

► Respecting the conflict in Iraq, Iraq Body Count reports that between 98,585 and 107,594 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003. (But see story quoted above.) That represents an increase of between 591 and 640 persons since 5 weeks ago. According to the U.S. Defense Department, 4,426 American servicemembers have been killed in Iraq, representing 5 servicemember deaths in the last 5 weeks. (As posted, U.S. troops are the only foreign forces remaining in Iraq.)