Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

CAT's Double-Edged Sword

This week, the Supreme Court decided Negusie v. Holder, an asylum case that examines the availability of a duress exception to the persecutor bar. I discuss the administrative law and moral philosophy components of the decision over at Concurring Opinions, but I thought that IntLawGrrls readers might be more interested in the lurking role that the Convention Against Torture plays in the opinion.

Mr. Negusie, a dual national of Eritrea and Ethiopia, seeks asylum from the Eritrean government that tortured him and forced him to work guarding prisoners who themselves were persecuted. The crucial question is whether Negusie should be barred from asylum for working as a prison guard or exempted from this bar because his assistance in persecution was the product of duress. Justice Kennedy, writing for the majority, finds that the Board of Immigration Appeals (the administrative body responsible for hearing intermediate asylum appeals) should decide whether the Immigration and Nationality Act contains a duress exception to the persecutor bar, but he makes it fairly clear that he believes such an exception should exist. Scalia's concurrence defers more strongly to the Board, while Stevens' concurrence and dissent opines that the Court should determine whether a duress exception exists and that the Board's role should be limited to laying out the parameters of this exception.

Lurking in the background is the fact that Negusie has been granted deferral of removal under the Convention Against Torture (CAT) because the Immigration Judge found he was likely to be tortured if returned to Eritrea -- and the persecutor bar does not apply to CAT relief. The prospect of denying Negusie asylum might be less appealing if its result would be to return him to Eritrea; by the same token, the availability of CAT relief makes it easier to deny him asylum. It's important to note that deferral of removal is a highly temporary status that doesn't entitle its recipients to freedom from detention, let alone the path to citizenship that asylum offers. Moreover, while asylees can extend protection to their dependent family members in the United States and abroad, the family members of CAT recipients obtain no such benefit.

While it provides broader relief than the Refugee Convention, I worry that, as interpreted through U.S. immigration law, the Convention Against Torture may play a role in diluting not only the generosity of relief available but also standards for protection of those fleeing persecution and torture. Is a more universal but less permanent form of relief better than its more restricted but more generous counterpart? That's not clear to me, and more importantly, I don't think that's a choice that asylum seekers should have to make.

On October 7

On this day in ...

... 1935, 4 days after troops from Benito Mussolini-led Italy "swept into Ethiopia from Eritrea and Italian Somaliland and overwhelmed the Ethiopian army," the Council of the League of Nations "declared that Italy was the aggressor nation in the Ethiopian affair and made preparations to apply sanctions against the Italians." In fact League members did nothing, however, and within a year Ethiopia (known then as Abyssinia) accepted Italian rule. "This incident was not a minor one and has been regarded by history to be one of the thorns that led to the outbreak of World War II." (map credit)

... 1955, at the Six Gallery in San Francisco's Fillmore district, a 29-year-old "unknown poet from the East Coast," Allen Ginsberg, gave the 1st public reading of "Howl." He began:

I saw the best minds of my generation destroyed by madness

and then continued with a poetic rant (full text here) that, in the words of an NPR retrospective, "gave voice to an undercurrent of dissatisfaction and alienation in Eisenhower's America." Lawrence Ferlinghetti, whose City Lights press would publish the poem amid controversy, described the impact of this literary icon of the Beat Generation with more punch: "'Howl' knocked the sides out of things."

Eritrea-Ethiopia Claims Commission: Findings on allegations of rape during armed conflict

The Eritrea-Ethiopia Claims Commission will conduct its final hearing -- the second of two hearings on damages -- on 19-30 May 2008. The EECC was established by agreement of Eritrea (flag below left) and Ethiopia (flag at right), as part of the peace process ending hostilities that broke out in May 1998. The jurisdiction of the EECC is to decide by binding arbitration claims that relate to the prior conflict and “result from violation of international humanitarian law, including the 1949 Geneva Conventions, or other violations of international law.” The commissioners are Hans van Houtte (President), George Aldrich, John Crook, James Paul and me, Lucy Reed. A description of the EECC and its proceedings appears at this page of the website of the Permanent Court of Arbitration, the Hague-based institution that serves as the Commission's registrar.
As an arbitration tribunal determining post-war violations of international humanitarian law on a civil rather than a criminal basis, and proceeding with minimal resources and time, the EECC has understandably generated little coverage. It is therefore worth flagging that the EECC has addressed allegations of rape in several awards. (As a commissioner, I cannot comment, but merely quote from or refer to the awards.)
The following virtually identical “Comment on Rape” appears in the Partial Awards in the “Central Front” Claims (Ethiopia’s Claim 2; Eritrea’s Claims 2, 4, 6, 7, 8 & 12) (quoting from the latter, section D, pp. 9-11; footnote omitted, emphases supplied by the Commission):

36. The Commission considers that allegations of rape deserve separate general comment. Despite the incalculable suffering inflicted upon Ethiopian and Eritrean civilians alike in the course of this armed conflict, the Commission is gratified that there was no suggestion, much less evidence, that either Eritrea or Ethiopia used rape, forced pregnancy or other sexual violence as an instrument of war. Neither side alleged strategically systematic sexual violence against civilians in the course of the armed conflict and occupation of Central Front territories. Each side did, however, allege frequent rape of its women civilians by the other’s soldiers.

37. The Parties agree that rape of civilians by opposing or occupying forces is a violation of customary international law, as reflected in the Geneva Conventions. Under Common Article 3(1), States are obliged to ensure that women civilians are granted fundamental guarantees, including the prohibition against “violence to life and person, in particular murder of all kinds,mutilation, cruel treatment and torture . . . outrages on personal dignity, in particular humiliating and degrading treatment.” Article 27 of the 1949 Geneva Convention relative to the Protection of Civilian Persons in Time of War ... provides:

"Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

"Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any form of indecent assault."

38. Article 76.1 of Protocol I adds: “Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault.”

39. We turn now to the specific allegations and proffered evidence concerning rape of civilian women. Both Parties explained that rape is such a sensitive matter in their culture that victims are extremely unlikely to come forward, and when they or other witnesses do present testimony, the evidence available is likely to be far less detailed and explicit than for non-sexual offenses. The Commission accepts this, and has taken it into account in evaluating the evidence. To do otherwise would be to subscribe to the school of thought, now fortunately eroding, that rape is inevitable collateral damage in armed conflict.

40. Given these heightened cultural sensitivities, in addition to the typically secretive and hence unwitnessed nature of rape, the Commission has not required evidence of a pattern of frequent or pervasive rapes. The Commission reminds the Parties that, in its Partial Awards on Prisoners of War, it did not establish an invariable requirement of evidence of frequent or pervasive violations to prove liability. The relevant standard bears repeating ...:

"The Commission does not see its task to be the determination of liability of a Party for each individual incident of illegality suggested by the evidence. Rather, it is to determine liability for serious violations of the law by the Parties, which are usually illegal acts or omissions that were frequent or pervasive and consequently affected significant numbers of victims."

41. Rape, which by definition involves intentional and grievous harm to an individual civilian victim, is an illegal act that need not be frequent to support State responsibility. This is not to say that the Commission, which is not a criminal tribunal, could or has assessed government liability for isolated individual rapes or on the basis of entirely hearsay accounts. What the Commission has done is look for clear and convincing evidence of several rapes in specific geographic areas under specific circumstances.

42. Perhaps not surprisingly, the Commission has found such evidence, in the form of unrebutted prima facie cases, in the Central Front regions where large numbers of opposing troops were in closest proximity to civilian populations (disproportionately women, children and the elderly) for the longest periods of time – namely, Senafe Town in Eritrea and Irob Wereda in Ethiopia. Knowing, as they must, that such areas pose the greatest risk of opportunistic sexual violence by troops, Eritrea and Ethiopia were obligated to impose effective measures, as required by international humanitarian law, to prevent rape of civilian women. The clear and convincing evidence of several incidents of rape in these areas shows that, at a minimum, they failed to do so.

43. For other areas along the Central Front, although there was evidence of occasional rape (deserving of at least criminal investigation), the Commission did not find sufficient evidence on which to find either government liable for failing to protect civilian women from rape by its troops.

The main findings on rape appear in the Partial Awards in Eritrea’s Central Front Claims (paras 80-81); Ethiopia’s Central Front Claim (paras 83-84; Ethiopia’s Civilians Claim (paras 83-90); Ethiopia’s Western and Eastern Front Claims (paras 49-56); and Eritrea’s Prisoner of War Claim (paras. 139-142).