Go On! AI annual meeting in San Francisco

(Go On! is an occasional item on symposia and other events of interest)

Amnesty International USA will host its Annual General Meeting this weekend, March 18-20, in San Francisco. Registration details here; full agenda here. (photo at right is from last year's meeting)
Amnesty is convening a special session for human rights lawyers on Friday, March 18 at the Fairmont Hotel, 950 Mason Street, from 9 a.m.-4 p.m. The event is free, but registration is recommened. Topics will include:

• the Foreign Sovereign Immunities Act,


• the Torture Victims Protection Act,


• the Alien Tort Statute,


• corporate accountability for complicity in human rights violations, and


• applying actions from international human rights mechanisms in U.S. courts.

Here is the full schedule:

9:00 – 9:30 Welcome and Opening Remarks: Jessica Carvalho Morris (left), Vice-Chair AIUSA Board of Directors and Director of the International and Foreign Graduate Programs, University of Miami School of Law
9:30 – 11:00 Civil Actions to Hold Human Rights Violators Accountable: Successes, Obstacles, and Future Challenges

• William S. Dodge, Professor of Law at the University of California’s Hastings College of the Law

• IntLawGrrl Chimène Keitner, Associate Professor of Law at the University of California’s Hastings College of the Law (right)

• Andrea Evans, Litigation Director, Center for Justice and Accountability (left)

11:00 – 12:30 No Safe Haven: Criminal and Administrative Enforcement

• IntLawGrrl Pamela Merchant, Executive Director, Center for Justice and Accountability (left, at podium)

• IntLawGrrl Beth Van Schaack, Associate Professor of Law, Santa Clara University School of Law (below left)

• Theresa Harris, AIUSA Board of Directors and Executive Director of the World Organization for Human Rights USA (right)

12:30 – 2:00 Lunch

2:00 – 3:30 Corporate Accountability: Emerging Standards

• Paul Hoffman, Schonbrun, Seplow, Seplow, Harris, Hoffman & Harrison, LLP

• IntLawGrrl Natalie Bridgeman Fields, Founder and Executive Director of Accountability Counsel (right)

• Morton Winston, Founding Chair of the AIUSA Business & Human Rights Group

3:30 – 4:00 Discussion and Closing Remarks

Hope to see you there!

Samantar accountability advances

(Delighted to welcome back IntLawGrrls alumna Pamela Merchant, who contributes this guest post)

I am pleased to update you on a recent development in Yousuf v. Samantar, a human rights case that five survivors of torture brought in 2004 against General Mohamed Ali Samantar, who was Minister of Defense in Somalia (left) during the brutal Siad Barre regime.

On February 15th, the U.S. District Judge Leonie M. Brinkema ruled that this former Somali offical is not immune from suit.

This ruling in the Eastern District of Virginia clears a legal hurdle that we have been contesting for years, including at the U.S. Supreme Court.

Last June, the Supreme Court held that General Samantar was not entitled to immunity under the Federal Sovereign Immunities Act, but left open the question of whether he is entitled immunity under the common law. (Prior IntLawGrrls posts available here.) Last month's district court ruling settled that question by deferring to a statement from the State Department which unequivocally declared that General Samantar is not entitled to any immunity from suit.

The intervention in the Samantar case by the State Department is particularly significant because the United States only occasionally intervenes in litigation, and very rarely intervenes to claim that a defendant is not entitled to immunity.

The ruling ensures that our march towards accountability will continue. To learn more about the case, filed by the San Francisco-based Center for Justice & Accountability, for which I serve as Executive Director, and pro bono co-counsel Akin Gump Strauss Hauer & Feld LLP, please click here.

ATS Case Involving Abuse By Church Officials Survives Motion to Dismiss

An Alien Tort Statute (ATS) case pending in the Central District of California survived this week a motion to dismiss for lack of subject matter jurisdiction. The case was filed on behalf of a Mexican national, proceeding anonymously, against Cardinal Roger Mahony, the Roman Catholic Archdiocese of Los Angeles, Mexican national Cardinal Norberto Rivera, Mexican national Father Nicholas Aguilar Rivera (left, the alleged direct perpetrator), and the Diocese of Tehuacan in Mexico. Plaintiff's lawyers specialize in cases redressing the abuse of minors. The plaintiff's allegations stem from abuse suffered when he was twelve-years old at the hands of Father Aguilar and the subsequent conspiracy among the defendants to conceal and cover-up the abuse in order to protect Father Aguilar and the Church. The complaint contains ten causes of action, including:

• rape & other sexual abuse,
• crimes against humanity,
• torture,
• cruel, inhuman, & degrading treatment,
• civil conspiracy,
• intentional infliction of emotional distress,
• negligence and
• failure to warn.

In addition to the abuse of the plaintiff, it alleges other instances of abuse in the relevant dioceses, including some that led to the criminal prosecution of Father Aguilar (see this timeline of events). Evidence invoked in the opinion suggest that Church officials were aware of Father Aguilar's history of abuse and yet did nothing to prevent his access to children in either diocese.

In the opinion denying defendants' motion to dismiss for lack of subject matter jurisdiction (under FRCP 12(b)(1)), the Court determined that plaintiff had adequately pled a federal cause of action and thus had the right to proceed in federal court. In so ruling, the Court determined that the plaintiff's claims were not insubstantial, implausible, frivolous, or devoid of merit, which would allow it to dismiss the case at this preliminary stage in the absence of a motion to dismiss for failure to state a claim upon which relief could be granted (under FRCP 12(b)(6)). The Court also ruled that the complaint was not barred by the 10-year statute of limitation, because the ATS is subject to equitable tolling. The infamous Erie case reared its head here as the Court cited California laws tolling cases involving a child plaintiff until the child turns 18 and laws tolling cases filed by victims of sexual abuse until the child turns 26. The Court determined that the case was timely under either theory. In addition, the Court ruled that plaintiff was not required to exhaust local remedies prior to filing suit here.

Most importantly for students of international law, the Court also ruled that plaintiff's international law claims were actionable under the Alien Tort Statute as violations of customary international law. In particular, it noted that rape, sexual abuse, and private torture can violate international law when they rise to the level of crimes against humanity. In so ruling, the Court cited prior ATS jurisprudence, human rights treaties including the Convention on the Rights of the Child, and Article 7 of the ICC Statute (defining crimes against humanity). The Court confirmed that supplemental jurisdiction exists over the California state law claims of negligence and intentional infliction of emotional distress.

Based on the arguments made in the instant motion, we can expect future motions to dismiss arguing that

• As a corporation, the Archdiocese cannot be sued under the ATS,


• The plaintiff has failed to allege facts that if true would entitle him to relief for the causes of action alleged.

The crimes against humanity claim is no doubt the most worrisome claim for the Church and the most vulnerable claim for the plaintiff. It will require the plaintiff to demonstrate the existence of a widespread and systematic attack against a civilian population. Given the increasing number of cases involving abuse and cover-up within the Church worldwide, the plaintiff may be able to meet this threshold. In addition, maintaining the crimes against humanity claim will entitle the plaintiff to broad pattern-and-practice discovery. The relevant federal rules of civil procedure allow discovery on any matter that is relevant to the party's claims; for good cause shown, the court may order discovery of any matter relevant to the subject matter involved in the action. This broad scope is limited, however, by evidentiary privileges, such as that between priest and penitent as set forth in California law.

This website contains information and a searchable database on priests accused of abuse (list of names above). Stay Tuned!

Intimate Violence, Victim Autonomy & State Due Diligence

Recently, I had occasion to re-read the momentous case of Opuz v. Turkey before the European Court of Human Rights (a case we've discussed on a number of occasions). (The photo at left shows some students and I visiting the Court several years ago). In Opuz, the Court ruled that Turkey’s failure to respond to twelve years of domestic violence against a woman and her mother (who was ultimately killed by the perpetrator) amounted to a violation of the right to life (set forth in Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms); a violation of the right to be free from torture and ill-treatment (Article 3); and a violation of the right to non-discrimination on the basis of sex (Article 14).
In so ruling, the Court determined that laws on Turkey's books addressed to protecting victims of intimate violence were not fully implemented:

• Protective orders took weeks to be issued and then courts failed to enforce them;
• Police either attempted to convince the (usually female) victim to drop her complaint or interjected themselves into the relationship in an effort to arbitrate a resolution of the dispute;
• Prosecutors refused to pursue cases;
• Courts entertained "provocation" and "defense of honor" excuses and issued sentences that are more lenient than those awarded for comparable crimes committed outside domestic context; and
• knowledge of the laws was low within the populace.

Acknowledging that it cannot place an "unreasonable or disproportionate" burden on the State vis-a-vis the State's positive obligations to prevent violations, the Court held nonetheless that the State's duty to intervene is triggered as soon as the State's agents know (or should know) that there is a real and immediate threat to an individual. (Para. 129). In light of the escalating violence against the applicant and her mother, the Court held that the responsibility for the effective prevention and prosecution of acts of intimate violence fell squarely on the State.

One aspect of the case on which we've not heretofore focused involves the fact that several times over the period in question, the applicant (at left, photo credit) and her mother filed, but then withdrew, criminal petitions against the abusive husband. The Court thus had to consider whether the authorities were nonetheless obliged under the circumstances to pursue the criminal proceedings against the husband.

The Court noted that a number of states require the authorities to continue criminal proceedings even when the victim withdraws a complaint in cases of domestic violence. In other states, the authorities may continue such proceedings in the public interest in light of several factors, including:

• the severity of the offense and whether it was premeditated,
• the use of a weapon and the issuance of threats,
• the presence of children or other at-risk individuals in or around the household,
• the current state of the relationship of the victim and the perpetrator,
• the perpetrator's criminal history,
• perceptions about the existence of a continuing threat, and
• the history of the relationship between the victim and the perpetrator.

Some states make the further distinction between crimes that are privately prosecutable and require the victim's complaint, and other--usually more serious--offenses that are prosecutable in the public interest in the absence of the victim's complaint and even without the victim's support. (See paras. 87-89).

In Turkey, it is only where the crime in question resulted in unfitness to work for ten days or more that the authorities were required to pursue criminal proceedings even absent a complaint lodged by the victim. (Para. 123). Indeed, Turkey argued that it would have violated the applicant's right to privacy and family life, set forth in Article 8 of the Convention, were the police to have separated the husband from the family.

The Court noted that a balance must be struck between the right of every person to be protected from intimate violence and the parallel rights to privacy and the family. (Para. 138). Here, the Court determined that Turkey had not struck the right balance in light of the factors listed above. Rather, the Turkish legislative framework set too high a bar to allow a prosecution to go forward absent a complaint from the victim. In addition, the authorities, although not entirely passive, failed to display the necessary due diligence to protect the rights at issue in light of those protective measures that were available to them and the severity of the harm. Bearing in mind the many reasons a victim might withdraw her complaint (including threats, "false consciousness," an apparent reconciliation, and a faith in the perpetrator's willingness and ability to reform), the rights to privacy and the family cannot be applied in such a way that they effectively override those rights addressed to the very safety of the private realm in the first place.

Interights intervened in the case (their case file is here) and provided an excellent brief on the emerging due diligence standard in human rights law. The brief traces trends in domestic law away from requiring victim participation in such cases towards placing authority for effective prosecution on the State. In addition, the brief noted that other persons and entities (such as medical personnel, family members, and neighbors) can increasingly report cases of domestic violence.

The petitioner, Nahilde Opuz, is reportedly in hiding, concerned that her ex-husband will retaliate against her for pursuing her case.

Go On! Salvador Study Program

My former client, Carlos Mauricio (right), is once again hosting a Summer Intensive Program in Modern Salvadoran History and Human Rights: June 20 – July 15, 2011. Carlos was a plaintiff in the case of Romagoza v. Arce brought under the Alien Tort Statute against two former Ministers of Defense of El Salvador that resulted in a $54 million plaintiffs' judgment. Although we only recovered a fraction of that amount, Carlos used his share to launch the Stop Impunity Project, which is aimed at bringing to justice individuals who violate international human rights norms. It also contributes to the movement to close the School of the Americas.

The Stop Impunity Project, in partnership with the University of El Salvador, will offer a four-week summer intensive program in modern Salvadoran History and Human Rights. The program has been designed for students of law, sociology, history, human rights, anthropology, social work and other related disciplines and is also appropriate for those working with immigration organizations and legal and social service providers that support the Salvadoran community.

The program will explore the history of El Salvador since the genocide of 1932 and will deepen participants’ understanding of conditions that led to the Salvadoran Civil War, the Civil War itself, the consequent diaspora, and the state of human rights throughout.

Core classes will be taught by experienced faculty from the University of El Salvador’s MA program in Human Rights and/or the staff of the Salvadoran Human Rights Ombudsman’s office. The program will include a series of lectures by founders of and participants in modern Salvadoran social and popular movements. Past speakers have included

• Nydia Diaz (below left), former guerrilla commander and current member of the Central American Parliament,


• Zaira Navas, Inspector General of the National Police,


• Roberto Cañas, former guerrilla commander and signatory to the 1992 Peace Accords,


• Manlio Argueta, prize-winning author and Director of the National Library,


• Santiago Gonsalvi, Director of the Museo de la Imagen y la Palabra, and others.

Participants will visit El Mozote (memorial above right), where more than 900 villagers were massacred by the army, the Universidad Centroamericana (la UCA) where six Jesuit priests and their housekeepers were murdered by the Salvadoran army, the chapel where Archbishop Romero was assassinated, and his tomb in the national cathedral. Participants will also visit NGOs and human rights organizations such as

• Pro Búsqueda,


• el Comité de Madres de Desaparecidos,


• Las Dignas, FESPAD,


• Tutela Legal,


• the Madeleine Lagadec Center for Human Rights,


• Protection Ambiental, and


• the Museo de la Imagen y la Palabra.

Participants will be guided in a short research project that meets their interest in the field. The language of instruction will be Spanish, and participants should be capable of participating in classroom discussions in Spanish, however, instruction will be designed with non-native speakers of Spanish in mind. Program participants meeting all the course requirements will be awarded with a Diploma in Salvadoran History and Human Rights from the University of El Salvador.

The course fee of $2,500 includes tuition, a round-trip economy class ticket from a major US hub, and shared bed and breakfast accommodation. Transportation to and from the airport, and for the two-day field trip to El Mozote is included, as is an overnight stay at a nearby hotel. Lunch, dinner and daily incidentals are not included, nor the nominal cost of urban transportation to sites within the city of San Salvador. Photos from last year's session are available here.

Read On! Once (& future?) Haiti

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

A long-exiled leader's come home and offered to save his country -- if only someone would free up his assets, frozen for the last year.

Suspicious, but not sure why?

Good time for a good read of The Comedians, the 1965 novel in which Graham Greene painted a picture of the Haiti of the time.
It was, as Greene famously wrote, a "Nightmare Republic" (p. 50), in which paramilitary thugs in dark glasses -- nicknamed after evildoers of Haitian folklore, the Tontons Macoutes -- served the ends of a corrupt regime by killing, maiming, terrorizing, anyone, anytime. Among those caught up were Graham's "comedians," 3 of the many outsiders who, in myriad ways, mired themselves in Haiti's woes.

At the head of that nightmare regime?

François Duvalier, known to all as "Papa Doc" (below, far left). Once a respected physician, following his election in 1957 he ruled with an increasingly brutal hand until his death in 1971. Succeeding him was his son Jean-Claude (below, near left), whose 15-year regime likewise was marked by killings, torture, and corruption. (photo credit)

As Hope posted, it is that son, "Baby Doc," now 59, who's returned to Port-au-Prince. And though prosecutors may thwart his goal, it seems he wishes to play a self-styled, and highly suspect, role of Haiti's savior.

On the Job: Bipartisan Task Force on Detainee Treatment

The Constitution Project (TCP) is hiring an investigative staff to work with its newly created, bipartisan Task Force on Detainee Treatment.

The goal of the Task Force is to bring to the American people a comprehensive understanding of what is known and what may still be unknown about the past and current treatment of detainees by the U.S. government, as part of the counterterrorism policies of the Obama, Bush and Clinton administrations. The Task Force will help policymakers and the public confront alleged past abuses—including torture and cruel treatment—by following the facts.

The Task Force will review available information, determine where the holes are and then pass the baton to the administration, Congress and ultimately—to the American people—who will determine what steps should be taken next.

The members of the Task Force represent a full spectrum of political views and a wide range of professional backgrounds—legal, public policy, intelligence, military, law enforcement, religious, academic, public service, and medical. The staff, working under the direction of TCP’s president and the Task Force Staff Director, will carry out factual investigation, legal and policy research and assist in the development of the Task Force report and recommendations. These positions are full-time, temporary positions with an expected duration of 12-18 months, the anticipated duration of the Task Force Review. TCP may hire multiple people at each of the positions depending on the anticipated needs of the Task Force.

TCP has the following staff openings:

TASK FORCE COUNSEL

Minimum qualifications: Law degree and at least five years of experience practicing or
teaching law in one or more of the following areas:

• Human Rights Law or the Law of Armed Conflict
• National Security Law
• Military Law
• Intelligence Law
• Constitutional, statutory law and judicial authority relevant to the treatment of detainees

The ideal candidate will have:
• Extensive and high level experience with oversight and investigations, policymaking, and policy analysis
• Outstanding research and writing skills
• The ability to manage competing demands and thrive in a challenging, fast-paced environment
• A commitment to factual objectivity, consensus-building and to working in a bipartisan environment

SENIOR INVESTIGATOR
Minimum qualifications: At least three years experience with complex factual nvestigations related to sensitive policy issues.

The ideal candidate will have:

• Extensive and high level experience in investigations with or about the federal government, either as a lawyer or investigative journalist
• Deep knowledge of and experience in law and policy on national security, human rights, armed conflict, military law, intelligence law, Constitutional, statutory law or other law relevant to the treatment of detainees
• Experience in formulating policy recommendations from results of investigation and
research
• Outstanding research and writing skills
• The ability to manage competing demands and thrive in a challenging, fast-paced environment
• A commitment to factual objectivity, consensus building and to working in a bipartisan environment

RESEARCHER

Minimum Qualifications: At least one year of work dedicated to research on complex legal and policy matters.

The ideal candidate will have:

• Research experience in law, with the federal government, or in high level academic settings
• Experience with law and policy on national security, human rights, armed conflict, military law, intelligence law, Constitutional, statutory law or other law relevant to the treatment of detainees
• Experience with fact-checking and review of citations and footnotes for accuracy and consistency
• Outstanding research and writing skills
• The ability to manage competing demands and thrive in a challenging, fast-paced environment
• A commitment to factual objectivity, consensus building and to working in a bipartisan environment

ADMINISTRATOR

Minimum Qualifications:
• The ability to manage production and storage of a large volume of documents, and to manage and maintain online document storage, either in a law practice or with a government or non-governmental investigation
• Experience in scheduling meetings, conferences, hearings, traveling and interviews
• Working knowledge of Microsoft Office
• The ability to format and proofread complex legal, policy or factual documents.
• The ability to manage technology needs, provide IT help desk support, and liaise with external IT consultants as needed

A competitive salary and benefits are available.

To apply: dubmit letter of interest, resume, references, and, except for applicants for the administrator position, a writing sample, to the attention of Charles Martel via email at cmartel@constitutionproject.org. Please indentify in the subject line of your email and in your letter the position for which you wish to be considered. No phone calls.

Dr. Filartiga, torture, and the environment

When the father of a boy who was tortured to death by police describes a situation as torture, it carries special meaning. In researching issues of human rights and the environment recently, I came across this moving statement by Dr. Joel Filartiga at an event marking the anniversary of the pathbreaking case Filartiga v. Pena-Irala (2nd Cir. 1980) (case discussed by IntLawGrrl Beth Van Schaack here):

Torture is the highest sin. Torture has no territory. It is an eternal and horrendous crime. We feel it in our spirits as if it were today. We live it every moment. We are living it with each moment.
Right now there are indirect ways of torture. Thousands of workers are dying in my country, intoxicated by agrotoxics that are being used in differential ways: There are [tens of thousands of] liters per year of pesticides used in a country of only six million inhabitants. These pesticides destroy the brainwaves . . . We have a sick country, miserable because the improper cultivation of soy has devastated our forests. Paraguay was an earthly paradise. . . . Today there are no more forests. Because there are no more forests, there is no more rain. The Paraguay river is a nest of water right now. The climate has changed completely. There are no more birds. The Guyra Campana, the bell bird that was born in Paraguay, no longer exists because there are no more forests.
Not only were Paraguayans tortured, our Paraguayan land is being tortured right at this moment. We are the fourth producer of soy in the world -- what a pity. We don't have birds, we don't have water, we don't have good health, our workers don't have any more land. . . . This is a problem of massive proportions my country is struggling with now.

Remarks of Dr. Filartiga [translated from Spanish by the law review], The Making of Filartiga v. Pena: Alien Tort Claims Act After 25 Years, 9 N.Y. City L. Rev. 249, 279-280 (2005-2006).

Skin lesions, rashes, headaches, nausea, vomiting and birth defects are among the health problems described in this IPS story about agrochemicals used on soybean plantations in Paraguay, an article that references Dr. Filartiga regarding the herbicide glyphosate.
Dr. Filartiga is quoted in this story two weeks ago, when a young man died just days after the fields next to his house were sprayed with pesticides, remarking on "chronic poisoning that leads to cancer or children born with deformities such as cleft lip." This study shows the link of pesticides to cleft lip and other birth defects.
For additional information on the environmental situation in Paraguay:

• World Wildlife Fund: Environmental Problems in Paraguay
• World Wildlife Fund: Soy Expansion: Losing Forests to Fields
• Ecologist story and video: Killing fields: the true cost of Europe's cheap meat

"An investigation in Paraguay has discovered that vast plantations of soy, principally grown for use in intensively-farmed animal feed, are responsible for a catalogue of social and ecological problems, including the forced eviction of rural communities, landlessness, poverty, excessive use of pesticides, deforestation and rising food insecurity."

Breaking News: "Baby Doc" in Haitian Court

Former self-appointed “president-for-life” Jean-Claude “Baby Doc” Duvalier was questioned by a Haitian prosecutor and a judge at his hotel outside Port-au-Prince and then “escorted” to court according to this BBC News report. At the time of posting, it is unclear whether he is being arrested or being subjected to further questioning. Reports indicate some unrest outside the courthouse.
International human rights NGOs and Haitian abuse survivors called for Duvalier’s immediate arrest after his mysterious return to the island on Sunday. Forced to leave Haiti during a popular uprising in 1986, “Baby Doc” Duvalier has been living in exile in France for more than two decades without arrest. His regime was characterized by widely and reliably documented human rights abuses.
Charges?

In addition to arguing Duvalier’s liability under Haitian law for alleged misappropriation of public funds and other violations, the Institute for Justice and Democracy in Haiti (IJDH) and the Bureau des Avocats Internationeaux (BAI) called for international human rights legal accountability (see press release here).

This legal documentation is supplemented by an extensive public record of Mr. Duvalier’s human rights violations, including the torture and disappearances of political dissidents at the Fort Dimanche prison and other crimes committed by organizations under his control including the Armed Forces of Haiti and the Volunteers for National Security (Tontons Macoutes).

Another Year...
For previous IntLawGrrls takes on Haiti, including by Marjorie Florestal, Jaya Ramji-Nogales, and yours truly, Hope Lewis, see here and here. One year after the 12 January 2010 earthquake, I wish I could suggest an accountable, effective, and sustainable pathway for rebuilding, recovery, and transformation. One thing is clear—the core of sustainability lies with the Haitian people and the Haitian Diaspora. Still, the rest of us must play our roles--even if that role is to remember the physician's oath "first, do no harm...."

As Dr. Martin Luther King said all human beings are “tied together in an inextricable web of mutuality.” Trade, humanitarian, human rights, migration, labor, tourism, and business laws and policies do have transnational implications. What "we" do has an impact in Haiti. What happens in Haiti matters wherever “we” are. Stay tuned.

On December 19

On this day in ...

... 2005 (5 years ago today), Armed Activities on the Territory of the Congo, the caption given a dispute between the Democratic Republic of Congo and Uganda, was issued. In this judgment the International Court of Justice decided, inter alia, that Uganda violated principles of non-use of force and non-intervention by acting militarily on Congolese territory and by supporting rebels. It also found Uganda responsible for breaching obligations under international human rights and international humanitarian law on account of the killings, torture, and other abuse that its troops committed against Congolese civilians, and its own failure to put an end to such crimes. In addition, the ICJ determined that Congo violated its Vienna Convention on Diplomatic Relations obligations toward Uganda on account of attacks that Congolese troops committed at Uganda's embassy in Kinshasa. Each country was held to owe reparations to the other.

(Prior December 19 posts are here, here, and here.)

Intersubjective Frames & Rational Choice: Transnational Crime & Human Trafficking

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

One of the defining aspects of the end of the twentieth century was the turn to market liberalization and political democracy as twin organizing principles for human societies in many parts of the world. These processes present an opportunity to better understand global norm formation and policy diffusion as actors grapple with the new circumstances of transnational openness.

One of the central aspects of responding to the dilemmas of globalization is how actors come to understand the nature of the phenomena they confront.

In our paper Intersubjective Frames and Rational Choice: Transnational Crime and the Case of Human Trafficking (recently renamed), we posit a theory that rational policy choices are conditioned on the prior and socially defined processes of issue framing. We argue for a two-step process that examines:

► 1st, how the argument is framed—a subjective, purposive, and persuasive process—and

► 2d, how once a frame has been selected, states rationally imitate the policies of states to whose policies they are especially sensitive.

Our findings affirm that norms and policies diffuse according to mechanisms that are highly sensitive to how they are framed.

We view the debate itself over frames as a strategic struggle to view the world—or at least the issue at hand—in ne particular way rather than in some other. Actors want to advance frames they think will further their interests, as well as those that they think will increase the chances that their favored policy will be accepted. Pressure and persuasion are explicit parts of this process. There is every reason to expect material and peer pressure to be brought to bear to convince skeptical states to accept the frame and to adopt the dominant powers’ interpretation of the rational policy response.

Accordingly, we stress that subjectively selected frames are demonstrably powerful prisms for rational action. Just as states rationally compete for capital by liberalizing capital controls when they accept the “Washington consensus,” we argue that they rationally anticipate externalities when they look at human trafficking through a transnational crime rather than a human rights lens.
We have used these insights to explore the emergence of norms and the diffusion of policy in the area of human trafficking – an issue that is without doubt susceptible to interpretation through multiple frames. We have stressed three of these frames in our paper:

► A victim protection frame,

► A human rights frame, and

► A transnational crime perspective.

Empirically, we observed struggles in international forums that reflect the critical issues of how human trafficking should be understand and tackled. The major Western powers were animated primarily by the transnational crime frame (despite the fact that most are also strongly committed to human rights generally). Non-governmental actors worked hard to offer an alternative that would emphasize the rights of victims. We have documented the consequences of this clash of ideational commitments:

► The earlier resolutions muted their human rights language over time,

► Discussions became lodged in Vienna (headquarters of the U.N. Office on Drugs and Crime) rather than exclusively in New York (and the U.N. General Assembly), and

► Ratification of the eventual Trafficking Protocol was made conditional on prior or simultaneous ratification of the Transnational Crime Convention itself.

This occurred because several major powers thought this frame favored their own interests in countering transnational crime and illicit migration.

For the most part, state actors were relatively easy to convince: after all, transnational crime potentially threatens state actors’ developmental plans, corrupts the local rule of law, and can interfere with other programmatic goals of the state. For this reason, the transnational crime frame was far more attractive to a greater number of states than the victim protection or human rights frames would have been. It bolstered rather than challenged traditional concepts of sovereignty, and legitimated states’ quests to protect their borders. The text of the adopted protocol clearly reflects this calculation. So does the extremely rapid pace at which it was negotiated.
The empirical bulk of the paper finds significant support for mechanisms of policy diffusion that follow, given the adoption of the transnational crime frame.

In contrast to most human rights issues, transnational crime involves serious externalities of at least two kinds:

► Direct externalities from the criminal activities themselves (violence, weapons and drug trafficking, money laundering, public health threats, documentation fraud and border violations), as well as

► Policy externalities (the anticipation that if a nearby state raises the costs associated with using its territory to commit these exploitative crimes, criminal networks will have incentives to move their operations elsewhere).

We have proposed and tested very precise ways to measure and test this argument.

Human beings are most often trafficked using surface transportation, and the lowest-cost option in most cases is to move them along roadways. Using satellite imaging, we have found road connections to be strongly positively correlated with adoption of a neighbor’s policies, both the criminalization and ratification. We argue this reflects vulnerability to policy externalities which can divert criminal networks from a high enforcement jurisdiction to one with lax enforcement. This is not especially consistent with theories of institutional isomorphism, which emphasize the relatively uncritical acceptance of Western scripts as models of appropriate state form and practice. The frame is largely Western, but the precise mechanism of policy diffusion we document is very local – right where the rubber hits the (transborder) road.
The Western countries and particular the United States reinforced the transnational crime frame with explicit forms of material and social pressure. The passage in the 2000 of the Trafficking Victims Protection Act in the United States – with its emphasis on rating countries’ efforts to stop human trafficking and threatening explicitly to sanction with the withdrawal of aid – both reflects and reinforces the transnational crime frame. The evidence suggests that the reputational and material consequences of U.S. tiers rankings were taken seriously; these were strongly and consistently correlated with the propensity for a country to criminalize human trafficking (thought not to ratify the protocol) following a poor rating. (map credit)

There is also the suggestion of an intriguing link between media attention to the trafficking issue and the willingness of countries to criminalize.
The crudeness of our measure does not at this point permit us to do much more than to suggest a plausible link, but it could be that attention in the media to trafficking problems reinforces the dominant transnational crime frame, potentially accounting for diffusion through learning processes as well.
Emphatically, we have not been able to show that criminalization and treaty ratification will lead to effective law enforcement on the ground. Such a project will inevitably be frustrated by a lack of reasonably good data on transnational crime in general and human trafficking in particular. Speculation about effectiveness aside, this research suggests some clear drivers in the spread of anti-trafficking norms worldwide.

Teeing Up ECCC Case 002

The Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia (ECCC) recently filed the Closing Order for Case 002 indicting four defendants for international crimes allegedly committed during the Khmer Rouge era (1975-1979). The four defendants in question, who have been in pre-trial detention since 2007, are the surviving members of the Khmer Rouge Central Committee and/or Standing Committee:
► Ieng Sary (former Deputy Prime Minister for Foreign Affairs) (left),
► Khieu Samphan (former Chair of the State Presidium) (below right),
► Nuon Chea (former Chair of the People’s Representative Assembly and the Khmer Rouge’s chief ideologue) (below left), and
► Ieng Thirith (former Minister of Social Affairs and Ieng Sary’s wife) (below right).
As a result of the Closing Order, which officially ends the formal investigation by the Co-Investigating Judges, the four defendants will be tried for crimes against humanity, grave breaches of the Geneva Conventions, genocide, and offenses under the 1956 Cambodia Criminal Code. In light of the enormity of the crimes committed by the Khmer Rouge, the Co-Prosecutors in their 2007 Introductory Submission asked the Co-Investigating Judges (“CIJs”) to focus their investigation on specific crimes in specific sectors, including:

• the multiple displacements of the population;
• the establishment of abusive cooperatives and worksites;
• the “re-education” of “bad elements” and the elimination of "enemies” in security centers and execution sites;
• crimes against particular minorities in Cambodia (including Cham Muslims, those of Vietnamese descent, Buddhist adherents, and individuals affiliated with prior regimes);
• and the “regulation of marriage,” which concerns forcible marriage and sexual relations as discussed here.

The overarching theory of the cases is that the Khmer Rouge used these criminal means to implement its revolutionary project. The Closing Order notes:

Whilst the existence of an ideological project cannot, as such, be considered to be a legal element of crimes against humanity, the implementation of the plan adopted, by criminal means in the case in point by the [Khmer Rouge] authorities demonstrates the widespread and systematic character of the attack.

As we've seen in a number of such cases, the CIJs invoke crimes against humanity as an umbrella charge to cover a range of abuses. The murder and extermination charges stem from purges of Khmer Rouge enemies (such as members of the prior regime) and killings committed at security centers and execution sites. Starting in 1977, the killing of members of the Vietnamese and Cham communities reached a scale so as to qualify as extermination as well as genocide. In addition, the CIJs imply that the charged persons could be convicted for extermination for the high numbers of deaths resulting from the large-scale population movements as well as the conditions of life in the security centers.
Enslavement, imprisonment and torture charges stem mainly from abuses at worksites, cooperatives, and security centers. At these sites, Khmer Rouge staff exercised

total control and all of the powers attaching to the right of ownership over the persons placed there . . . .

The infringements on freedom in the worksites and cooperatives also deemed to constitute imprisonment. Deportation charges concern persons of Vietnamese descent forced to leave Cambodia after the Khmer Rouge came to power.
Evolving patterns of persecution on political grounds (against intellectuals, individuals associated with the prior regime), religious grounds (against members of the Cham community and adherents to Buddhism), and racial grounds (against people of Vietnamese descent) involved grave violations of fundamental rights recognized under customary or conventional international law. The charge alleging the commission of other inhumane acts through attacks on human dignity encompasses everything from deprivations of food, shelter, medical care, sanitation etc. during the population movements to the condition of life at worksites. The rape charges stem from the arrangement of forced marriages, which are also charged as other inhumane acts.
The Co-Investigating Judges have already determined the admissibility of over two thousand Civil Party applications (of over four thousand filed). Other applications were rejected primarily because the Civil Parties did not allege acts falling within the situations under investigation, and a number of these are under appeal. The Civil Parties whose applications were deemed admissible include forty-one victims based in the United States who are represented by the Center for Justice & Accountability, a human rights law firm based in San Francisco, led by IntLawGrrl guest/alumna Pamela Merchant, which has heretofore focused on Alien Tort Statute/Torture Victim Protection Act litigation.
There is no question that these defendants were high-level figures within the Khmer Rouge, responsible for launching a radical and ultimately disastrous revolutionary program. Case 002 will determine the extent to which they can be held responsible for the crimes committed in connection with implementing this project throughout the country given that mid-level cadre may have had considerably discretion in to how to best advance the revolution.
To date, all these defendants have either denied their knowledge of or involvement in abuses by their subordinates or laid responsibility at the feet of their dead compatriots, Pol Pot (“Brother Number One”) (right) or Ta Mok (head of the Revolutionary Army of Kampuchea) (above left).

Stay tuned!

For a longer discussion of the Closing Order, see my ASIL Insight.

No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.

Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.

In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.

The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria

has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.

Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)

Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)

Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,

the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.

This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.

Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.

The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

Domestic violence as torture

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

Recently, reports of detainee abuse in the “war on terror” have dominated the international legal discourse on torture. This focus on detainee abuse, however, should not obscure developments concerning the most common and pervasive form of torture: domestic violence.

Last summer, a landmark judgment for victims of domestic violence, Opuz v. Turkey (2009), was handed down by the European Court of Human Rights (below right). The Court found the Republic of Turkey liable for torture or inhuman or degrading treatment, under Article 3 of the European Convention on Human Rights, because local officials had failed to prevent and redress the abuse of Nahide Opuz and her mother by Opuz' husband. The Court concluded that the state’s response to the abuse “was manifestly inadequate to the gravity of the offences in question,” in spite of noting that the Turkish authorities “did not remain totally passive” and that “ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3.” Turkey was ordered to pay Opuz 30,000 euros in compensation for violating Articles 2, 3, and 14 of the European Convention.

For years, human rights bodies have recognized that state failures with respect to domestic violence can amount to torture. An example is General Comment No. 2 - Implementation of article 2 by States parties, issued in 2008 by the Committee Against Torture.

The ECHR decision in Opuz, however, seems to mark the first time that an international or regional court has held a state accountable for domestic violence, between partners, under a theory of torture — thus establishing the justiciability of the concept. Yet this aspect of the holding has received surprisingly little media attention.

The lack of coverage may be partially due to the fact that, as IntLawGrrl Stephanie Farrior pointed out in a prior post, the Opuz judgment was also remarkable in other respects, including its acknowledgment of domestic violence as a potential form of gender discrimination.

Women’s rights advocates have been pushing for greater recognition of domestic violence as a breach of international human rights for decades, and have made enormous jurisprudential strides. Seminal cases such as Velásquez Rodríguez v. Honduras, decided in 1998 by the Inter-American Court of Human Rights (left), helped establish the concept of state accountability for transgressions by non-state actors. Moreover, the traditional view that domestic violence is inherently a family matter beyond the purview of the state has been challenged by cases like Bevacqua and S. v. Bulgaria, rendered by the European Court of Human Rights in 2008.

As a result, state failures to prevent and redress domestic violence can now be understood to violate a range of human rights. The late Rhonda Copelon (right), to whom I have dedicated this post, explained in early 2009:

The next step in this legal and cultural revolution is to treat gender violence as torture. So far, rape — in war, by the state and where the state does not take measures against it — has been acknowledged in international law as an act of torture. Domestic violence — the most private and most common of all forms of gender violence — is on its way.

The Opuz holding is an important milestone in this regard.

The benefits of a “torture” designation are manifold, and have normative as well as practical value in enhancing legal protections for domestic violence victims:

► These victims of stand to gain from the jus cogens status of the prohibition of torture. It confers a heightened level of international condemnation and sends a clear message that domestic violence is an unqualified violation of human rights.

► Another benefit is the resultant availability of the protections and complaint mechanisms that exist for torture. These can bolster international legal protection for victims of domestic violence.

► A third benefit is the synergistic effect of combining the efforts and resources of advocates focused on feminist issues with those of international human rights generalists.

As Copelon articulated:

Simply recognizing domestic violence as torture will not solve the problem of domestic violence. But . . . it will help make domestic violence a front burner issue, hastening both the impartiality, adequacy and appropriateness of official responses and the cultural revolution that demands absolute and unconditional condemnation of such violence.

Accordingly, as the world laments the mounting evidence of torture perpetrated in the “war on terror,” the same sense of indignation and urgency must be extended to the private torture that countless people endure on a daily basis.

The torture ban & cultural relativism

At the XVIIIth International Congress of Comparative Law held here in Washington, D.C., last week (about which others have blogged here and here), I was asked to participate in a plenary session.
The session was entitled The Prohibition Against Torture and Cultural Relativism. Specifically, I was asked to speak about this issue from an international criminal law perspective, addressing in particular whether different notions of how to evaluate allegations of torture emerge in the jurisprudence of the ad hoc international criminal tribunals. Interestingly, I found that the way in which the tribunals dealt with this question had a gender dimension.
A summary of my thoughts follows.
Consistent with human rights law, torture under the jurisprudence of the international criminal tribunals consists of an act or omission giving rise to severe physical or mental pain or suffering. Notably, the tribunals have held that permanent injury is not a requirement for torture; moreover, evidence of the suffering need not even be visible after the commission of the crime.
Nevertheless, in some cases, the tribunals have highlighted that certain forms of torture have long-lasting effects on the victim, particularly in cases involving sexual violence.
In those cases, it appears that social and cultural context may be relevant to an assessment of whether the pain is severe enough to constitute torture. For instance, while the tribunals have recognized that rape qualifies as torture because it causes severe pain and suffering, both physical and psychological, an early judgment of the International Criminal Tribunal for the former Yugoslavia -- Prosecutor v. Delalic, Mucic, Delic and Landzo (the Celibici Case) (1998)-- explicitly pointed out:

The psychological suffering of persons upon whom rape has been inflicted may be exacerbated by social and cultural conditions and can be particularly acute and long-lasting.

A later judgment, Prosecutor v. Limaj (2005), agreed with this finding, noting that

in certain circumstances the suffering can be exacerbated by social and cultural conditions [and that] the evaluation should[, therefore,] take into account the specific social, cultural and religious background of the victims when assessing the severity of the alleged conduct.

Curiously, this later judgment highlighted the fact that this finding was

made specifically in the context of rape.

Perhaps this is not surprising, since harm from sexual violence is often long-lasting, in part because of the cultural and social norms prevalent in many of the victims’ communities.

Indeed, as commentators have noted, women and girls continue to suffer from the consequences of sexual violence long after a conflict or attack against the civilian population has ended, often because of the social and cultural values of the community to which the victim belongs. For instance,

the birth of children from rape [by a member of a group to which the victim does not belong] ... is likely to cause significant [and long-term] ... mental harm, especially in patriarchal societies where the ethnicity of the child is [considered to be] that of the father, thus the rapist.

(See the 2005 book by Professor Anne-Marie L.M. de Brouwer (left), Tilburg Law School, the Netherlands, entitled Supranational Criminal Prosecution of Sexual Violence: the ICC and the Practice of the ICTY and ICTR.) Similarly, long-term consequences such as isolation and ostracism are particularly common in social, cultural , or religious communities which attach stigma to the victim rather than the perpetrator of rape; indeed, victims of rape in these communities are sometimes cast as “unmarriageable” or abandoned by their spouse and/or family members.

Interestingly, the idea that cultural conditions should be considered in the analysis of whether particular conduct rises to the level of torture does not seem to appear in the discussion of other types of acts alleged to constitute torture.

In fact, acts such as:

► being forced to watch severe mistreatment inflicted on a relative;

► falsely informing a victim that his parent has been killed; and

► forcing victims to collect the dead bodies of other members of their ethnic group

have all been recognized as amounting to torture by the ad hoc tribunals without recourse to an analysis of the victims’ cultural or social background.

Consistent with this, consideration of cultural or social conditions is absent from the elements of torture, as enumerated in the Elements of Crimes that the Assembly of States Parties adopted to assist the judges of the International Criminal Court in interpreting the crimes within the jurisdiction of the Court. In fact, consideration of such factors is absent from the elements of all other crimes subject to the jurisdiction of the ICC, save one: the war crime, set forth in Article 8(b)(xxi) of the Rome Statute of the ICC, of commission of outrages upon personal dignity.

This crime requires that the

perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons [to a] degree ... generally recognized as an outrage upon personal dignity.

A footnote to the definition states that it “takes into account relevant aspects of the cultural background of the victim.”

It may, perhaps, be appropriate to consider the broader circumstances in which the accused’s conduct occurred – including the cultural background of the victim – when assessing whether that conduct “humiliated, degraded or otherwise violated the dignity of” the victim, as what is considered to violate one’s dignity is often culturally dependent. Curiously, however, there is little discussion of victims’ cultural backgrounds in the jurisprudence of the ad hocs dealing with the war crime of outrages upon personal dignity. Indeed, while the tribunals have found, for instance, that:

► the use of detainees as human shields or trench-diggers;

► inappropriate conditions of confinement;

► performing subservient acts;

► being forced to relieve bodily functions in one’s clothing; or

► enduring the constant fear of being subjected to physical, mental or sexual violence

all qualify as outrages upon personal dignity, none of these findings were contingent upon an analysis of the victims’ social or cultural circumstances.

Thus, even in the context of assessing whether a person’s dignity has been violated – where the social, cultural or religious context may be relevant to understanding how a perpetrator’s conduct would be experienced by the victim as violating his or her dignity – a victim’s cultural heritage seems to have had little bearing on the tribunal’s analyses.

The tribunals’ lack of attention to cultural context may, perhaps, be explained by a shift in their jurisprudence with respect to how long the victim must have suffered as a result of the accused’s humiliating or degrading conduct – a factor that, as the ICTY indicated in its discussion of rape as torture, can be exacerbated by the social and cultural values of the community to which the victim belongs.

While an early case, Prosecutor v. Aleksovski (1999), suggested that the humiliating or degrading treatment must have caused “lasting suffering” to the victim, the trial chamber decision in a later case, Prosecutor v. Kunarac et al. (2001), found:

So long as the humilitation or degradation is real and serious, the Trial Chamber can see no reason why it would also have to be "lasting" .... Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious. However this does not suggest that any sort of minimum temporal requirement of the effects of an outrage upon personal dignity is an element of the offence.

I would submit that this is probably the right approach, not only in the context of prosecuting sexual violence as an outrage upon personal dignity, but also when prosecuting it as the war crime or crime against humanity of torture.

Indeed, not all women who suffered sexual violence in conflict situations are permanently shamed, ostracized, or rejected by their communities. In fact, one commentator writing on wartime rape in Bosnia-Herzegovina notes that when one rape survivor was asked whether she felt shame or guilt because of what happened to her, she responded:

'The shame is theirs, not mine.'

(See Feminism and its (Dis)contents: Criminalizing Wartime Rape in Bosnia and Herzegovina, a 2005 article by Karen L. Engle (right), Cecil D. Redford Professor in Law and Director of the Bernard and Audre Rapoport Center for Human Rights and Justice at the University of Texas School of Law.)

Opening the door to consideration of social and cultural conditions in assessing whether conduct was severe or serious enough to warrant characterization as an outrage upon personal dignity or an act of torture may lead to overlooking conduct that might not result in long-lasting suffering but would otherwise qualify as humiliating or degrading, or even as an act of torture.

More significantly, it may tempt the court to evaluate the circumstances of a case by reference to the judges’ own social or cultural norms.

The Sentencing Judgement in Prosecutor v. Zelenović case illustrates this point. The judgment in that case was confined to sentencing, as the accused there pleaded guilty to torture and rape as crimes against humanity. Noting that

[t]he gravity of the offences is the primary consideration in imposing a sentence,

the trial chamber first emphasized that

torture by means of rape is a particularly grave form of torture.

It then went on to point out that what makes rape a particularly serious crimes is

[t]he violation of the moral and physical integrity of the victims.

Although the accused’s conduct no doubt caused physical, and perhaps psychological, harm to the victims, it is unclear what the Chamber meant by stating that the rape also violated the victims’ “moral integrity.” The point here is that the Chamber’s use of the term “moral” seems to imply a value judgment about the nature of sexual violence which the victims may or may not have shared.

Notably, the ICTY Appeals Chamber's 2002 decision in Kunarac took an arguably more objective approach in analyzing the question of whether rape amounts to torture. Rather than considering the victims’ social or cultural background in assessing whether the harm was severe enough to qualify as torture, the Appeals Chamber held:

Generally speaking, some acts establish per se the suffering of those upon whom they were inflicted. Rape is obviously such an act .... Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.

In light of the circumstances in which victims find themselves in these cases – that is, in the midst of an armed conflict or a widespread or systematic attack against a civilian population – it is perhaps understandable that cultural conditions need not be considered when evaluating whether the harm suffered was serious or severe enough to qualify as torture. Indeed, as explained by the ICTY in Prosecutor v. Kvocka et al. (2001):

In considering whether severe pain and suffering was also inflicted upon the other victims of sexual violence, the Trial Chamber takes into consideration the extraordinary vulnerability of the victims [in this context] and the fact that they were held imprisoned in a facility in which violence against detainees was the rule, not the exception. The detainees knew that Radic [the accused] held a position of authority in the camp, that he could roam the camp at will, and order their presence before him at any time. The women also knew or suspected that other women were being raped or otherwise subjected to sexual violence in the camp. The fear was pervasive and the threat was always real that they could be subjected to sexual violence at the whim of Radic. Under these circumstances, the Trial Chamber finds that threat of rape or other forms of sexual violence undoubtedly caused severe pain and suffering to [the witnesses] and thus, the elements of torture are also satisfied in relation to these survivors.

In sum, I think that in this context there is little room for a cultural relativism approach.