Friday, November 27, 2015
Princeton Professor Angus Deaton will receive the Nobel Prize for Economics in Stockholm on December 10. While much of Deaton's work has focused on the developing world (particularly India), putting a human face on issues such as malnutrition and lack of housing, Professor Deaton has also trained his view on the U.S.
In this paper, from 2011, he analyzes health disparities in the U.S. and elsewhere. Among other things, he concludes that "the recent concentration of wealth at the very top of the income distribution in the United States (and other English speaking countries) is a serious threat to well-being, through its possible long-term effects on health, education and democracy."
Perhaps we see this being played out in the world today. Kudos to the Nobel Committee and to Professor Deaton for raising the level of discourse and analysis of this issue.
Thursday, November 26, 2015
The Public Interest Law Alliance of Ireland reports that the widespread use of civil commitment in the US is frustrating efforts to gain extraditions. According to PILA, reporting on a decision issued in October 2015:
"The British High Court has upheld a denial of the United States government’s extradition request concerning a US citizen charged with a number of serious sexual offences. The charges relate to allegations of sexual abuse committed by Roger Giese against a 14 year old boy over a 4 year period from 1998 in California. Giese fled to England while on bail preparing to stand trial, establishing a new identity and remaining undetected by US authorities until 2014.
The High Court upheld the denial of the extradition request because of the ‘real risk’ Giese faced upon return to California that he would be subjected to a procedure known as civil commitment. Civil commitment allows for the indefinite detention of people who have served prison sentences for certain types of sexual offences but are still deemed to be ‘mentally ill and dangerous’ by State-appointed medical experts. It is practised in 20 States in the US, but each State adheres to its own guidelines.
The Court held that civil commitment would constitute a ‘flagrant denial’ of rights protected by the European Convention on Human Rights (ECHR). Though the Court recognised that Article 5 of the ECHR permits the deprivation of liberty in cases which include the lawful detention of persons of unsound mind, it took issue with the overly broad scope of the approach taken by California in its civil commitment procedure. That ‘the net is cast widely’ by those medical professionals responsible for identifying who should be subjected to civil commitment means that those with a mental diagnosis which falls ‘far short of unsound mind’ are likely to be committed. Persons who do not ‘think correctly’ or ‘make the wrong decision’ may also be committed. As such, the Court ruled that the extradition request should be denied given the real risk that Giese may be subjected to civil commitment and thus carrying out the extradition would be inconsistent with his rights under Article 5 of the ECHR.
The case marks the second time British judges have refused extradition requests from US authorities on the grounds that civil commitment of sex offenders constitutes a breach of human rights under the ECHR. The process of civil commitment has also been declared to be unconstitutional by federal judges in the US, in Missouri and Minnesota."
The case received some attention in the US press, with one journalist calling it a striking referendum on the practice. The U.S. Supreme Court most recently upheld the practice of civil commitment in U.S. v. Comstock, 560 U.S. 126 (2010). For a scholarly history of civil commitment practices in the U.S., click here.
Wednesday, November 25, 2015
Professors Julie Goldscheid (CUNY Law) and Debra Liebowitz (Drew) have just posted an abstract of their article, "Due Diligence and Gender Violence: Parsing its Powers and its Perils," published in the spring 2015 issue of the Cornell International Law Journal. The article is based on several years of work in collaboration with the Due Diligence Project, dedicated to developing the contours of this international standard. The abstract of the article is available here, and the complete article can be downloaded from the law journal website here.
We argue that emerging interpretations of the due diligence obligation as applied to gender violence pay insufficient attention to the risks of State intervention. While State response is clearly needed, we should be cautious about the ramifications of the demand. A reflexive focus on State response can encourage an undue emphasis on criminal justice responses with adverse consequences such as arrests of survivors. It risks situating the State as the entity charged with program delivery when other entities would be more effective. An appropriate model of state responsiveness should explicitly grant the State discretion not to respond, or to delegate its response to other stakeholders such as community members, survivors, NGOs, and advocates. It should consider the impact of any intervention on those at the margins — particularly those from racial, ethnic, religious, and sexual minorities — and should take into account the experiences and recommendations of both advocates and survivors. A careful balancing of the need for State accountability with the risk of over-intrusiveness can best advance foundational human rights principles, such as non-discrimination, equality, autonomy, and dignity, in service of ending gender violence and promoting justice.
Tuesday, November 24, 2015
As discussed by both Martha Davis and JoAnn Kamuf Ward earlier, countries are struggling with the refugee crisis. But U.S. citizens have responded poorly. While the administration offered of aid by way of admitting Syrian refugees, many individuals in the U.S. responded to that proposal with unkindness. It appears that many Americans lack the fundamental empathy necessary to care for those who struggle.
While some of the anti-immigrant, anti-Muslim resolve may be based in fear, that does not account for all of the immigration backlash. Much anti-immigrant sentiment originated long before current events. Anti-immigrant hatred pre-dates both the Syrian migration and the Paris attacks.
Playing off of the poverty and under-education and the consequent limited opportunities of many of their constituents, along with the arrogance and narcissism of some wealthy, Donald Trump and Ben Carson revel in the chaos that erupts after their increasingly aggressive attacks on those who seek safety and a better life in the United States. But the politics of exclusion are not new. The U.S. has turned away those desperate to escape brutality before. The current situation reminds me of U.S. refusal to accept European Jewish refugees escaping Hitler's scourge who arrived at our shores on the U.S.S. St. Louis. That shame of that particular act of cruelty has not diminished with time. In the current instance, however, the state is not the culprit. But others who seek power are.
As JoAnn Kamuf Ward reminded us, we can do better. We have a chance for a do over. But so far many Americans refuse to consider, let alone learn from our historical regrets. Once again, I fear that historians will record us as turning our backs on those who are at risk of dying at the hands of their governments. All because some who seek power lack both the courage and dedication necessary to seek the common good.
Monday, November 23, 2015
JoAnn Kamuf Ward, Lecturer-in-Law & Associate Director, Human Rights in the U.S. Project, Human Rights Institute, Columbia Law School
Across Europe, countries are deciding how to respond to the current humanitarian refugee crisis and balance that response with concerns of safety and security (or not). As Martha Davis reported here, in Sweden, history is playing an important role in shaping the response.
In the U.S., we face some of the same challenges. It is impossible to deny the overwhelming sense that nowhere is safe. But the quest for safety and security should not be driven only by fear. As the NY Times Editorial Board wrote on Wednesday,
It is impossible to prevent all violence by hate-filled sociopaths and ideologues who are willing to die, and confronting the extremist threat from ISIS and other terrorist groups will require many strategies. But none of them require demolishing the values that are the heart of democratic societies, including the free flow of people and information. Banning all refugees, as some in America and Europe are demanding, would be an ineffective and tragic capitulation to fear. Governments should improve border controls and vigilance, but expanding wiretapping and other surveillance in free societies must be resisted.
This is a sentiment echoed by many, including Washington Governor Jay Inslee, one of the few state governors who has publicly committed to welcoming Syrian refugees. Thirty one governors have threatened to exclude Syrian refugees (the legality of this gubernatorial action is debunked here and here).
In an NPR interview Governor Inslee discussed his attempt to do better than the U.S. has done in the past. In 1942, two months after the attacks on Pearl Harbor, President Roosevelt issued an executive order that set the stage for the forced relocation and internment of more than 100,000 Americans of Japanese ancestry. This broad and overzealous response was motivated by concerns about safety and security married with fear, as well as misunderstanding, racism, and discrimination.
The Supreme Court’s Korematsu decision, which ruled that the exclusion and internment of Japanese American was constitutional, has never been overturned. Yet the Federal government has renounced its actions and the decision. In 1988, the United States, under President Reagan enacted the Civil Liberties Act. The Act offered a much needed apology, as well as reparations for individual survivors of internment. It also stated that the actions taken by the United States constituted “a grave injustice.” And further, that the U.S. response was “motivated by racial prejudice, wartime hysteria, and a failure of political leadership."
But in this time of deep polarization and politicization, there is not even consensus on lessons to be drawn from Japanese internment. The same day as the Inslee interview, Mayor Bowers of Roanake, Virginia, cited the actions of President Roosevelt as justification to halt assistance to Syrian refugees in his city. The Washington Post quickly offered its own critique of the Mayor’s position, as did a number of other news outlets. With such disparate views of the past at play, it is hard to see the path forward.
In the days ahead, let us recall one fact: overzealous, reactionary responses that are driven only by fear have a real human cost. John Tateishi, who spent his childhood years in an internment camp, led efforts to secure redress for the victims of Japanese internment to ensure the same mistakes were not repeated in the future. He drew inspiration from the Japanese saying “kodomo no tame ni” (which translates to “for the sake of the children.”)
Certainly, the responses we choose today will impact not only us, but our children.
Note: On Friday Mayor Bowers apologized for his remarks, after facing sharp criticism.
Friday, November 20, 2015
In early November, a number of US-based rights groups called on government agencies to live up to their obligations under 1998 Executive Order 13107 and the ICCPR requiring point of contact responsible for responding to human rights violations within agency jurisdiction. In letters to six agencies, including DOJ and the Department of Defense, the civil society groups renewed requests that they had first made in March 2015.
The renewed requests were spurred by an October decision of the Court of Justice of the European Union striking down the EU-U.S. Safe Harbor arrangement that allowed free flow of information between the governments. In its ruling, the Court emphasized the absence of a remedy in the US for improper processing of personal data. According to the coalition organizations, "[s]ubstantial reform of U.S. surveillance laws and authorities . . . will be necessary in order to assure the EU and the rest of the world that U.S. companies are able to adequately respect the privacy of non-U.S. persons."
Want to be part of the dialogue to address these issues? RightsCon 2016 is coming up, March 20 to April 1, 2016, in the Silicon Valley. According to the organizers at Access Now, "RightsCon brings together activists, visionaries, technologists, businesses, lawyer, civil society members, and engineers to advance the issues at the intersection of internet and human rights." Proposals for program sessions are due by December 4. More information is available here.
Thursday, November 19, 2015
November 20th is Universal Children's Day. The U.N. established Universal Children's Day in 1954 to create a day of “activity devoted to the promotion of the ideals and objectives of the [U.N.] Charter and the welfare of children of the world.” Worthwhile goals, but as there are now more than 125 international observance days, it is fair to ask whether Universal Children’s Day makes a difference.
Universal Children’s Day presents an opportunity to reflect on both progress made and work still to be done. Since the adoption of the U.N. Convention on the Rights of the Child—the most comprehensive treaty on children’s rights and well-being—on November 20, 1989, significant progress has been made on behalf of tens of millions of children around the world. Yet much more work remains. The data on infant and child mortality rates reflects this: globally, the number of deaths of children under five declined from 12.7 million in 1990 to less than 6 million in 2015. That’s vital progress, as many children now realize their most precious right—to life and survival. Yet more than five million young children still die each year, largely due to preventable causes.
But Universal Children’s Day can be much more than a day to raise awareness. It can be a day of action, a launching point for initiatives that accelerate progress on children’s rights and wellbeing. What might that look like? I have three suggestions.
First, if you are President of the United States, send the Convention on the Rights of the Child (CRC) to the Senate for its advice and consent. The CRC is the most widely accepted human rights treaty in history. There are 196 parties to the treaty; the U.S. is the only country that hasn’t ratified it. The CRC has helped foster progress on law, policy, and programs aimed at improving children’s well-being and securing children’s rights. The U.S. signed the treaty in 1995, but it has taken no action since then (ratification is necessary to make a treaty legally binding).
Under U.S. law, treaty ratification requires to the advice and consent of two-thirds of the Senate. Speculation about the level of support in the Senate is understandable, especially after the Senate failed in 2012 to achieve two-thirds support for the Convention on the Rights of Persons with Disabilities (it fell five votes short). But such questions are also premature. The future of the CRC in the United States lies entirely in President Obama’s hands, because the Administration hasn’t even sent the CRC to the Senate for its consideration. On Universal Children’s Day, the President can move the CRC forward by sending it to the Senate.
Second, if you are the CEO of a company, figure out how your company’s expertise or skill set can advance the rights and well-being of children. When the United Arab Emirates faced a problem with trafficking of young boys to serve as camel jockeys (the boys, many as young as five or six years old, were confined in unsanitary conditions, underfed, and often suffered serious injuries in races), it was a Swiss company that helped provide part of the solution. It invented a robot jockey, eliminating the demand for trafficked boys. Of course, technological advances can’t solve everything. Many young boys in Bangladesh, Pakistan, Sudan and Yemen who might have been trafficked to the UAE remain vulnerable to other harms. But the point is not that the private sector has to do everything. Rather, it’s that innovative solutions are needed, and the private sector can make a difference. UNICEF has been building innovative partnerships to improve health, education, and social protection. Companies across all sectors can support this and other similar work. So Universal Children’s Day is an ideal day for CEOs to figure out how their company’s skillset can advance child well-being.
Third, if you are the head of a household, talk about human rights with your children. Rights are inherent. That means children, like adults, possess them. They are not left to governments to decide whether to grant them to individuals at age eighteen. Parents and caregivers are trustees of those rights as children grow and develop. The CRC recognizes the critical role of parents and families in nineteen provisions of the treaty. Children confront rights issues early – in both their day-to-day lives and in the imaginative spaces created for children, such as their favorite books. Though children, especially young ones, might not talk about rights issues using human rights language, they understand rights issues. Parents and other caregivers can play a critical role in guiding and supporting children as they explore questions about their own rights and their responsibilities to respect the rights of others. Universal Children’s Day offers a wonderful opportunity to start to engage children in a dialogue about rights and to explore ways to make their communities more child rights supportive.
In short, whatever role you play in your family, community, or country, you can use your unique position, knowledge, or skills to advance the rights and well-being of children. By doing so, Universal Children’s Day can be the start of a more supportive approach to children’s rights and child well-being.
Wednesday, November 18, 2015
by Jeremiah Ho
Last week’s developments in Utah directed against same-sex relationships are reminders that the movement toward equality based on sexual identity continues after the marriage victory this past summer at the Supreme Court. First, the Mormon Church promulgated new policies that declare same-sex couples apostates and limited their children from baptism and other church rites. Such policies have engendered much harsh rebuke—even from within the Mormon community—and led this past Sunday to a mass resignation of 1,000 church members.
The second event in Utah involved April Hoagland and Beckie Peirce, a married lesbian couple, who was ordered by a juvenile court judge to have their 1-year old baby foster daughter be removed from their home and sent to a “traditional” home. The judge’s rationale for his decision was based on unsupported assumptions that children fare better in homes with opposite-sex parents rather than same-sex parents. However, by the end of the week, the judge reversed his order and the couple was allowed to keep their foster daughter.
Now that same-sex couples have the right to marry and the legal benefits that come with marriage, it has become easier to see how the struggle for equality heavily involves the violation of human dignity. In both Utah situations, same-sex relationships have been singled out for the kind of denigration described by Justice Kennedy in Obergefell v. Hodges: the kind that results in a strong stigmatizing effect for sexual minorities. It would not be hard to see that the Mormon Church policies convey a lesser worth in the relationships of same-sex couples if their children were punished because of their parents’ sexual orientation. Likewise, in disallowing the Hoagland and Peirce petition to keep their foster daughter, Judge Scott Johansen singled out the couple in a way that denigrated and placed a negative value on their relationship
Both situations demonstrate Kennedy’s animus-dignity premise in the Windsor and Obergefell opinions: that the narrative of marriage discrimination for sexual minorities has been one that correlates animus with indignity. Both attack same-sex relationships from a place of disdain for sexual minorities (animus) and singled out same-sex relationships with the effect of tarnishing them (violations of dignity). In this way, these two recent cases in Utah demonstrate how Kennedy was very much on point in the description of sexual orientation discrimination.
But with these two repeated incidents of the animus-dignity pattern of discrimination occurring in the aftermath of Obergefell, one might ask, why bother? In the Mormon Church scenario, the purpose itself for the new policies was to make a second-class citizenry out of the families created and maintained by same-sex couples. While in Haigland and Peirce’s situation, the order to remove their foster child denigrated their relationship. Don’t the actors in these situations understand how this all works?
In some ways, I would argue that we need situations like this in Utah to continue to create progress for sexual orientation nondiscrimination. From an incrementalist perspective, these prejudicial and discriminatory moments—like the denial of services to gay couples by small business owners, like the Kim Davis, county clerk controversy in Kentucky—are necessary to keep the conversation for nondiscrimination alive. This is not just because such incidents of prejudice and discrimination stoke the conversation regarding sexual identity inequality, but because as far as the conversation is concerned, we have reached a tipping point socially and politically. The new church policies have been singled out by constituents in the Mormon Church as completely intolerable—even by its own members. And after controversial media coverage that condemned the Utah judge’s decision, he back tracked on his decision to remove the foster child from Hoagland and Peirce’s care. At some point, hopefully these instances that marginalize same-sex couples and sexual minorities will be fewer and fewer—particularly when we reach the next tipping point in the conversation. But for now, each time such an instance occurs, the conversation around these moments and about discrimination generally should be framed in a way so that the narrative of animus and indignity is exposed.
Tuesday, November 17, 2015
It is a particularly interesting time to be an American living in Sweden. Along with the rest of the world, Americans on this side of the Atlantic share the horror at last weekend's senseless and tragic events in Paris. At the same time, it's clear that there is a deeper public understanding here of the difference between the many refugees seeking humanitarian assistance in Europe and the terrorists who perpetrated the attacks in Paris. Over the past few months, there has been concern about the resources needed to handle the influx, certainly, particularly since Sweden has taken more refugees per capita than any other European country. But even now, many leaders are working here to make sure that strain is not, after Paris, transformed into attacks on the refugees themselves.
The morning's US papers report that now twenty-seven US Governors (and counting) have said that they will not accept Syrian refugees in their state. A few, notably the governors of Colorado and Washington state, have bucked that tide, indicating that their state borders are still open to those seeking humanitarian aid. One looming question is whether state governors can even assert a right to exclude refugees when the issue is clearly a matter of federal law, impinging on foreign relations, and within the Executive's authority. But, vying for political popularity and riding a wave of fear, many governors have cynically chosen to ignore the legal constraints on their state policies and to publicly equate refugees with terrorists.
Of course, there is grave concern in Sweden, too, about more terrorism, and about the possibility of criminal actors using the refugee influx as a vehicle for embedding their operations in new nations. But so many people and communities here have seen refugees before, and understand the overwhelming needs that motivate their movement across borders. At a bus stop in Lund a few weeks ago, an older woman overheard me explaining the definition of "refugee" to my children, and she joined in. "Go to the cemetery," she said, "and you'll see the graves of people who arrived here in the 1940s but were so sick and weak that they died before they could resettle. They were not identified, and they have no names."
"People my age," she continued, "remember that time. And it motivates us to do better now."
Monday, November 16, 2015
Just over a year ago I posted about developing a human rights code of conduct for legal aid and other nonprofit offices. I first developed the idea of a human rights code of conduct as the Director of the Local Human Rights Lawyering Project at the Center for Human Rights & Humanitarian Law at American University Washington College of Law. One of the goals of that project was to apply human rights principles to the interactions between colleagues at legal aid organizations, and also between staff and clients. I developed a human rights code which was described in my previous post, and then later assisted Maryland Legal Aid and the Center for Human Rights & Humanitarian Law in developing their own human rights codes (e.g. Maryland Legal Aid Guiding Principles). Those human rights codes were mean to provide an ambitious and aspirational guide for behavior. The codes were meant to go above and beyond the rules of professional conduct, and were directed at individuals, as opposed to the U.N. Guiding Principles on Business and Human Rights, which are directed at businesses and states.
Today I want to share with you a new development. This semester I had my clinic students develop their own human rights code of conduct for our in-house civil litigation and transactional clinics. This is actually quite a feat. None of my students had taken an international law or human rights class in law school. Moreover, I teach at one of the most conservative law schools in the U.S. This is also my first year directing and teaching here at ONU, so most of you know how overwhelmed I may or may not be. Here is what my students came up with:
Human Rights Principles for the ONU Legal Clinic
- Be open and understanding of every client's diverse background, experiences, and legal issues.
- Promote transparency in the attorney-client relationship.
- Make sure that every client has access to their attorney and the knowledge and information they can provide.
- Treat everyone as an equal.
- All persons shall be afforded the right and opportunity to legal representation.
- Acknowledge and accept differences regardless of race, culture, sexual orientation, socio-economic status, marital status, disability, gender, age and political affiliation.
Integrity and Best Judgment
- In order to preserve ethics, integrity shall be common to all.
- Strive to embody the integrity that all people should possess.
- Be honest with the court, client, colleagues, and opposing counsel.
- In representing a client, take the same care and caution that you would when dealing with your own affairs.
Dignity and Respect
- Treat persons as equals and respect them, their experiences and beliefs, and their wishes.
- Treat all persons justly and fairly because they are human beings.
- Treat the problems of others with dignity.
- Remember the humility that is required to take your personal decisions and problems before another person for assistance.
- Treat others the way you would want to be treated.
- View your relationship with clients and colleagues as a valuable asset.
- Commit yourself to being considerate of all persons and problems.
- Let others know that their thoughts and feelings matter, and that they are being heard.
- Timely provide each client with the necessary information they need in order to make an informed decision.
- Engage in co-operative decision making with the client, and make sure that the client remains informed and involved throughout the process.
In terms of what prompted the students to produce these principles, I choose one of our first rounds sessions to begin this exercise. I started by giving my students a brief lecture on the human rights framework and human rights law. Next, I introduced this exercise by telling them that I wanted them to draft a human rights code of conduct for the clinic, which I explained to be a set of principles to guide their work with each other, with their professors, with the courts, with the public, and with clients in the clinic. I gave them each a copy of the Universal Declaration of Human Rights and we had a discussion about what were some of the major themes that stood out for them as applicable to student and supervisor behavior in clinic. We then had a discussion about how to describe the ideal behavior for a student attorney in clinic using language from the rules of professional responsibility.
I then had the students individually write down on a Post-It what they thought was the most important principle for a successful client-staff relationship. I told them to stick the Post-It on a wall and try to organize the Post-Its according to theme or principle. On their own, they came up with the six headings of “Openness”, “Equality”, “Integrity and Best Judgement”, “Dignity and Respect”, “Kindness” and “Empowerment”. I then had them break out into teams based on the six headings and had them brainstorm together about how to describe the ideal behavior for a student attorney in clinic using human rights terms. I then directed the students to refer to their copies of the Universal Declaration of Human Rights and to ask me any questions that they had.
They ended up with the above set of principles after a few hours of group brainstorming and drafting, and then a few weeks of back and forth editing over the course of the semester to finalize the principles. Ideally, the Human Rights Principles for the ONU Legal Clinic would have been posted at their workstations, in the clinic lobby and in our supervisors’ offices, the idea being that the students would be reminded of these Principles wherever they went in clinic and that clients could also read the Principles and help keep us accountable. This semester we did not actually get around to posting the Principles, for a variety of outside reasons, though I did refer to them during supervision, rounds and during our clinic evaluation conversations.
The Human Rights Principles were more important and more meaningful for some students than others. Some students talked about the drafting process and the Principles on a weekly basis, and some never mentioned the Principles again. For me, I feel like this exercise was very important in terms of how I taught professionalism and ethics in the context of our live-client clinic, as well as how I integrated professionalism into our rounds discussions. I also constantly look for ways to talk with my students about the practical application of human rights here in the U.S., and this exercise provided a good opening for those discussions. At the very least I hope this exercise affirmed how students hope they interact with their colleagues and clients in the future, but it is my hope that the Principles actually helped students re-examine and reconfigure their aspirations in their roles as future attorneys.
Friday, November 13, 2015
Newsweek and other sources report that the President's plan for closure of Guantanamo is expected to be released this week. Meanwhile, as previously reported here, on Tuesday the OSCE Office of Democratic Institutions and Human Rights released a new report on the human rights situation of Guantanamo detainees, calling again for the swift closure of the facility. The report was prepared despite the US refusal to allow OSCE access to the camp. Instead, researchers did their work through interviews with detainees' lawyers, government officials, and former detainees. The Wall Street Journal notes that the very existence of OSCE report lends credence to one of President Obama's arguments for the facility's closure, i.e., that Guantanamo harms the US's international standing. The Inter-American Commission on Human Rights, representing the Organization of American States, released its own report in August charging human rights violations and urging Guantanamo's closure.
The OSCE monitors human rights throughout its 57 participating states, which include all 28 NATO members. The OAS represents 35 member states.
Thursday, November 12, 2015
When a state systematically murders its own people, how can a society ever recover? One solution advocated by social scientists and legal scholars alike is the development of collective memory – an enduring and shared memory of events – to heal the wounds of a tattered national conscience and prevent the recurrence of mass atrocities. But is collective memory compatible with judicial systems, which often are heavily influenced by notions of individualism?
An annual online symposium that is a partnership between Opinio Juris and NYU Journal of International Law and Politics (JILP) will contemplate just that. This year, the focus of that symposium is Professor Rachel Lopez's article The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice.
The article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. By design trials may be ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby re-traumatizing their clients.
In this article, Professor Lopez offers an alternative. She urges a fundamental re-thinking of the law’s preference for individual memory in the context of transitional justice. She argues that the inclusion of victims’ collective memory will facilitate a better understanding of the collective harms that characterize mass atrocities and will serve the distinct goals of transitional justice, including reconciliation, the creation of a historical record, nation-building, and legal reform. She further contends that human rights lawyers should act as preservers and promoters of collective memory and explores potential avenues to accommodate its incorporation into legal proceedings.
Wednesday, November 11, 2015
By Risa E. Kaufman, Executive Director, Columbia Law School Human Rights Institute; Lecturer-in-law, Columbia Law School
The data revolution is upon us, spurred by the UN’s adoption of the 2030 Sustainable Development Goals (SDGs). How can U.S. advocates leverage this revolution to ensure greater domestic human rights accountability? By leading the conversation about what data to collect, and how to collect it.
As has been discussed here and here, on September 25th, the UN adopted the SDGs, or Global Goals, to replace the Millennium Development Goals (MDGs) as an agenda for tackling global poverty. Grounded in human rights and applicable to all countries, the 17 goals and 169 targets cover a broad range of economic, social, and environmental issues, including gender equality, poverty, climate change, healthcare, access to justice, inequality, and many other issues.
Now that the UN has officially adopted the goals, its attention is turned to creating global and national indicators for measuring progress towards each goal, as well as developing reporting and review structures at the global and national levels. By March 2016, the UN Statistical Commission will release a set of global indicators to guide the data collection. Each country, including the United States, will be expected to form its own national-level indicators.
Here is where U.S. advocates should step in. Civil society has an important role to play in developing indicators of U.S. progress on the SDGs, and in eventually collecting and analyzing quantitative and qualitative data to measure and assess how the U.S. is doing. Human rights can and should provide the normative framework for how we measure U.S. progress on the SDGs, and a human rights framework can guide how indicators are developed.
The SDGs make clear that the process of indicator formation at the national level should be inclusive and participatory. The Obama administration has made strong statements about its intent to model domestic implementation of the SDGs, and to include civil society in domestic implementation of the SDGs. U.S. advocates can take the administration at its word by urging specific indicators, grounded in human rights, for the U.S. to use as a yard stick for assessing its progress with meeting the SDGs.
But, just how do we develop human rights-based indicators for measuring U.S. progress on the SDGs?
A 2012 report by the UN Office of the High Commissioner for Human Rights (OHCHR), entitled Human Rights Indicators: A Guide to Measurement and Implementation, offers an important starting point. Building off of the framework contained in the OHCHR report, the Center for Social and Economic Rights recently issued a briefing paper on human rights indicators for the SDGs.
As these resources explain, the human rights framework for indicator formation requires breaking each right (or goal) to be assessed into its component parts, or attributes, and crafting measurements for both inputs (effort and conduct) and outcomes. Three categories of indicators should be applied to each component part: structural indicators, which measure a country’s commitment to ensuring rights; process indicators, which assess a country’s ongoing effort to implement human rights commitments; and outcome indicators, which measure the results (impact and effectiveness) of institutions, policies, and other processes.
The human rights framework counsels that human rights indicators include both quantitative and qualitative measures. In other words, they should include objective and fact-based indicators, as well as subjective indicators based, at least in part, on public perception.
And, consistent with the core human rights principle of non-discrimination (and the SDG’s promise to “leave no one behind”), human rights indicators must be disaggregated according to gender, race, ethnicity, disability, age, and other factors contributing to inequality and rights violations.
Finally, as urged by OHCHR, the Center for Economic and Social Rights, and others, in designing human rights indicators, particularly those for measuring progress on the Global Goals, data should be devised and collected by communities, organizations, and service providers working closely with people living in poverty and other marginalized groups.
With its emphasis on data and metrics, the SDGs offer domestic advocates an important new tool for ensuring U.S. human rights accountability. But the SDGs’ utility depends on the United States adopting meaningful indicators for tracking its progress towards meeting the goals, and a robust process for monitoring its implementation of the goals. U.S. advocates should not sit on the sidelines of this effort. By proposing rigorous human rights-based indicators, U.S. advocates can shape how the U.S. measures and models progress on eradicating poverty and ensuring human rights at home.
Tuesday, November 10, 2015
Prof. Jill Engle reported the following: Joining a growing national movement, the Mayor of State College and the City Council declared Freedom from Domestic Violence a Fundamental Human Right and adopted a declaration that provides chilling statistics on the frequency of domestic violence. One statistic that is particularly disturbing is the range of age- 2o days to 92 years- of those who were killed because of family violence.
Prof. Engle was joined in this endeavor by Courtney Kiehl, a former student and current fellow in the Family Law Clinic directed by Prof. Engle. Courtney gives her personal account of her commitment to the project:
I came to law school because of my experience working with victim-survivors of sexual and domestic violence. I’ve seen cuts, bruises, scars, and fingers that had been broken so many times that the bones would never lay straight again. I’ve seen the emotional impact that goes far past the skin’s surface, the relentless fear, devastation, broken hearts and families. I’ve held the hands of young children as I walked them in to the courtroom and I’ve sat beside them as they testified about the violence they’d seen. For over a decade, this has been my world. I’ve dedicated myself to one mission, one goal: creating a world free from gender-based violence.
On October 12, 2015, that goal moved a little closer when my university town of State College, Pennsylvania joined the growing list of local government bodies across the country that have declared it is a fundamental human right to live free from domestic violence. These proclamations raise awareness and demonstrate support for a new, human rights-based approach to domestic violence. Further, these proclamations highlight the responsibility of local government to address domestic violence while acknowledging the important role they play in keeping their citizens safe.
The human rights proclamation was a policy project started by students in Penn State Law’s Family Law Clinic, where I’m currently doing a fellowship. In 2013 a clinic client, Tracy Raymond Miscavish, was killed by her estranged husband. This project has been deeply important to me and to each student who has worked on it.
During my second year of law school, I was fortunate enough to be a student in the Family Law Clinic
Monday, November 9, 2015
The National Press Club posts the following notice:
WASHINGTON, D.C., 9 November 2015 – The OSCE Office for Democratic Institutions and Human Rights (ODIHR) will release its report The Human Rights Situation of Detainees at Guantanamo at 9:00 a.m. on Tuesday, November 10, at the National Press Club in Washington, D.C.
The report contains the findings of the comprehensive assessment conducted by ODIHR from 2012 to 2015 of the human rights situation of the detainees since the opening of the detention facility. It analyzes the compliance with OSCE commitments and other international human rights standards and, as applicable, international humanitarian law of conditions and treatment in the Guantanamo facility and of proceedings before the military commissions. It also explores challenges related to the closure of the facility and accountability and redress for human rights violations that may have occurred in the Guantanamo context.
At the event, experts from the ODIHR Human Rights Department, responsible for the production of the report, will outline its main findings and recommendations, as well as challenges for and possible future steps toward the closure of the detention facility at Guantanamo.
Answering questions about the report's contents will be Omer Fisher, Deputy-Head of the ODIHR Human Rights Department, and Lucile Sengler Adviser on Anti-Terrorism Issues, ODIHR's Human Rights Department.
Journalists are invited to attend the news conference on Tuesday, November 10, at 9;00 a.m. at the National Press Club, 529 14th Street, Washington, D.C.
Public Affairs Unit
OSCE Office for Democratic
Institutions and Human Rights
Ul. Miodowa 10
+48 609 522 266
Friday, November 6, 2015
Courts and administrative agencies that fail to note the relevance of human rights to their work? Administrators who refuse to cite on-point human rights law and focus only on domestic precedents? Welcome to Denmark!
But while Danish adjudicators' approaches to human rights seem remarkably similar to those in the U.S., one professor has developed a new and promising critique of these blindered practices. Professor Ayo Naesborg-Andersen of the University of Southern Denmark has written a fascinating new study titled Human Rights in National Administrative Law: Dissemination of Knowledge of Human Rights through Administrative Decisions (Djof Publishing 2015), that takes the Danish administrative system to task, not because they are ignoring the law, but because they are failing in their responsibility to enhance the legal capability of their constituents.
In highly readable prose, Professor Naesborg-Andersen argues that human rights law entails not just dry, legal treaty text, but is also intended to enhance individual and group capacity toward legal capability and empowerment. Many treaties and other aspects of international human rights law explicitly mandate human rights education as part of the law's implementation. Indeed, the UDHR itself admonishes in its final paragraph that "every individual and every organ of society . . . shall strive by teaching and education to promote respect for these rights and freedoms . . . " Professor Naesborg-Andersen deftly ties these provisions to broader concepts of empowerment, including capability theory. She argues that ratification of human rights treaties necessarily entails communication with the populace concerning the treaties' protections as part of this empowerment process. Among other things, she reviews the large-scale English and Welsh Social Justice Survey, which concluded, not surprisingly, that "Knowing your rights is not particularly important for achieving the desired object, if you obtain relevant advice. But those who know their rights beforehand are more likely to obtain relevant advice than those who do not know their rights."
Having developed a theoretical underpinning to support integration of human rights norms into domestic law as a tool for expanding legal capacity, Naesborg-Andersen then conducts an exhaustive analysis of several aspects of Danish administrative law, specifically the decisions of the Danish Parliamentary Ombudsman and the Danish Equality Board. She develops a series of criteria to aid in searching the relevant decisions, and applies those criteria through several levels of analysis.
Among her observations is that the failure to acknowledge relevant human rights creates a vicious cycle. For example, the more the Ombudsman fails to cite human rights, the less relevant these rights seem to future litigants, and the less knowledge is built up within the Ombudsman's own office regarding these rights.
At the end of the day, Naesborg-Andersen has to acknowledge that the fault for lack of comprehensive human rights knowledge in Danish society does not fall exclusively on the administrative justice system. Parliamentary debate, news stories, school lessons, could all further human rights knowledge and capability. But, she concludes, the Ombudsman and the Equality Board have a special obligation to "educate the general population about their work," and "an integral part of their work is to further the legal capability of Denmark." Unfortunately, as we have also seen in the U.S., the "lack of knowledge about human rights visible in the judgments can in itself suppress human rights from being considered applicable." By considering the obligation of administrative agencies to enhance legal capability, Professor Naesborg-Andersen has pointed a route out of this disempowering loop.
Thursday, November 5, 2015
Recently I sat in the main office of a racially-diverse middle school in Chapel Hill, North Carolina, waiting to speak with a guidance counselor. I arrived early in the morning, and the school resource office (SRO) assigned to the school from the local police department was one of the few people already there. He amiably interacted with staff, teachers, and students, and he gave me a big smile when he walked past. By all accounts, he couldn’t be a nicer guy. Yet, he is a white man in a uniform, armed with a gun, in a school populated by eleven, twelve and thirteen-year-olds. He can make arrests, and he can refer students for criminal prosecution in juvenile delinquency court. In fact, there are armed police officers who work as SROs in all the public middle and high schools in the district in which I live.
Last week I read about the assault of a 16-year-old African-American student named Shakara by SRO Ben Fields, a white man, at Spring Valley High School in Richland County, South Carolina. I read that Shakara was allegedly being “disruptive” by failing to put away her cell phone during math class and then refusing to leave the classroom because she felt the punishment was unfair. I read that SRO Fields is known as “Officer Slam” because of his brutal treatment of Spring Valley High students. I read that Shakara was charged criminally with the misdemeanor charge of “disturbing schools,” which carries a maximum of ninety days in jail and a $1000 fine. And I read that an 18-year-old classmate, Niya Kenny, was charged as an adult with the same offense for speaking up in support of Shakara during the assault.
There are at least seven other states with “disturbing schools” laws on the books. In North Carolina, for instance, the analogous criminal offense to the one facing Shakara and Niya Kenny is disorderly conduct by disrupting students (NCGS 14-288.4(a)(6)). Yet, the statutory language in North Carolina differs from that of its southern neighbor. Under the NC statute, the state must prove beyond a reasonable doubt that a person intentionally causes a public disturbance by disrupting, disturbing, or interfering with the teaching of students at an educational institution or by engaging in conduct that disturbs the peace, order, or discipline at an educational institution or on the adjacent grounds.
North Carolina cases in which the evidence was found to be insufficient to support an adjudication of juvenile delinquency for the offense include In re S.M., 190 NC App. 579 (2008), in which a female high school student laughed and ran away with a friend after an administrator asked her to stop in the school hallway; she was then chased by an SRO for 10-15 seconds before he arrested her. The NC Appeals Court found that this was an instance of “ordinary misbehavior or rule-breaking,” which did not rise to the level of criminal activity. In challenging these offenses in North Carolina courts, the defense typically focuses on the element that requires proof of intentional behavior that caused an actual public disturbance, which distinguishes ordinary misbehavior like that of Shakara’s from true instances of disturbing the peace within a school.
In contrast, the South Carolina “disturbing schools” statute is very broad, as it not only criminalizes the willful or unnecessary interference or disturbance of students or teachers but also criminalizes mere loitering on school premises and/or “act[ing] in an obnoxious manner thereon.” Candidly, I can think of dozens of examples of typical adolescent behavior on school grounds that could be deemed “obnoxious” and conceivably fall within the language of this statute. Yet, in 2006 when the statute was challenged as overbroad and vague in violation of the First Amendment, the South Carolina Supreme Court affirmedthe lower court’s decision that it was not unconstitutionally overbroad. The decision, however, was quite fact-intensive, involving a boy who had been yelling and cursing in a classroom for over two hours and then took a swing at his teacher as he was escorted down the hall, so there is likely room to bring another appeal based on different facts.
As for the cell phone video of the incident at Spring Valley High, I’ve seen similar videos in the course of representing hundreds of children charged with criminal offenses resulting from school-based “incidents” during my years teaching in the Youth Justice Clinic at UNC Law School. Even so, I wasn’t prepared for this one. The violent and vicious way in which SRO Fields slammed Shakara, still sitting in her desk, onto the classroom floor and then pulled her across the room before restraining her on the ground was horrifying. I’d be outraged to see an animal treated that way, let alone a teenager.
Yet, the SRO’s attack on Shakara is a quintessential example of the school-to-prison pipeline in action, as it illustrates perfectly what the statistics already tell us – that black students are suspended and expelled from schools three times more often than their white peers, and that for black girls, the rate is twice that amount. In fact, in South Carolina black students comprise 60% of those who are suspended from school but only 36% of the state’s student population. A federal civil rights investigation into the incident has been initiated by the Columbia FBI Field Office, the Civil Rights Division, and the U.S. Attorney’s Office for the District of South Carolina.
After more than a decade of juvenile justice advocacy, I’ve concluded that police officers have no legitimate role in our schools. The reality is that SROs are not found in most private, charter, or parochial schools, yet these educational settings manage to maintain safe learning environments for their students. SROs are not typically trained in adolescent development, in diffusing tense situations, in building rapport with students, in advising students, or in mediation, and if these are in fact the skills and qualities that are needed in a particular school setting, qualified school counselors should be hired rather than uniformed and armed police officers. Of course, if an urgent situation requires law enforcement, school administrators—like all citizens—can dial 911 or request assistance from the local police department.
Unfortunately, the school-to-prison pipeline is not unique to South Carolina or to North Carolina or to only a handful of states. There are more than 17,000 police officers assigned to schools across the United States. Data confirms that the presence of uniformed and armed law enforcement in schools has a criminogenic effect. In other words, placing armed police in schools actually increases the physical dangers to youth. Therefore, as long as SROs are in school buildings and classrooms, students—particularly youth of color—are as vulnerable as Shakara, not only to prosecution for typical adolescent misbehavior but to physical assault.
Wednesday, November 4, 2015
I had some misgivings as my trip to Trondheim, Norway approached. I was scheduled to speak to students and faculty at the Norwegian University of Science and Technology about the Torture Memos and detainee treatment at Guantanamo -- not comfortable topics for an American abroad. How I would have preferred to discuss some of the other, more positive topics covered in this blog -- how US mayors are stepping up to implement human rights norms locally, or how the social movement for marriage equality succeeded in changing the law and lives. But the Norwegian students had just read Guantanamo Diary, and they were anxious to talk with an American lawyer about the range of issues raised by that book -- torture, indefinite detention, censorship and so on.
I touched on all of those topics, but framed my remarks around the legal ethics issues that I'm most familiar with, and argued that on top of everything else, the organized bar failed to adequately respond to the Torture Memos. The audience was knowledgeable and tough, and asked more than once why there was so little accountability for the torture policies at the highest levels of US government.
The day after my talk, I had the opportunity to visit the Falstad Memorial and Human Rights Centre about an hour's train ride outside of Trondheim. Falstad was built as a special school for delinquent boys but starting in 1941, it served as the Falstad SS prison camp during the German occupation of Norway. Political prisoners en route to concentration camps, Jews headed for Auschwitz and others passed through the camp. Not everyone left. Some were tortured. Hundreds of prisoners were shot point blank and buried in unmarked, mass graves in the stately pine forest nearby.
The Falstad Centre is open about its history. Its original function, our guide told us, could be characterized as a work house for low income children. When it became an SS camp, it was not only occupying Germans who carried out the barbaric acts there; some of the guards and collaborators were local Norwegians. And of course, on a national scale, the Norwegian puppet government provided cover for German policies during the war.
When the Falstad Centre formally opened in 2006, the foreign Minister of Norway suggested that Falstad could served as a counterweight to the already internationally notorious US torture and detention policies. The Falstad Centre, he argued, by marking the graves and naming those who passed through the camp, attempts to restore the identity and humanity of the otherwise faceless victims. It shows, he said, why no individual or government should be excused from honoring basic human rights and permitted to torture or suspend the Geneva Conventions.
While I certainly agree, I took a slightly different lesson from my visit -- and that is, the importance of speaking out about human rights violations, even when it is uncomfortable to do so. The Falstad Centre's impact is all the more powerful because it confronts the reality of Norwegian collaboration and collective responsibility, as well as the humanity of the occupying forces, though it cannot be a popular to do so -- and indeed, the Falstad exhibit has provoked a wide-ranging debate in Norway. Though I had mixed feelings about hosting a frank conversation about the Torture Memos in Trondheim, I came away from Falstad feeling that holding such uncomfortable conversations in all quarters is an important aspect of addressing human rights abuses and, in the long run, finally relegating the violations of the Torture Memos and Guantanamo detentions to history.
Tuesday, November 3, 2015
The U.S. government recently announced a consultation with civil society on November 12 in conjunction with its next periodic report under the Optional Protocols to the Convention on the Rights of the Child. The U.S. ratified the Optional Protocol to the CRC on the Sale of Children, Child Prostitution, and Child Pornography and the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict in 2002 and is preparing to submit its third report to the UN Committee on the Rights of the Child. This is an important, if often undervalued, opportunity to advance the rights and well-being of children in the United States.
I have been privileged to participate in both prior reviews of the United States under the Optional Protocol on the Sale of Children, including presenting testimony to the U.N. Committee on the Rights of the Child during its session with NGOs in advance of its meeting with the government. Those experiences show that the reporting process offers three significant opportunities for human rights advocates. First, the Committee takes seriously the views of NGOs. Often the questions, or List of Issues, that the Committee poses to a government reflects gaps highlighted by NGOs in their alternative reports or in their testimony to the Committee. Second, many of the Concluding Observations and recommendations for the government come from NGO input. Finally, the post-review process offers a critical opportunity to use the recommendations in advocacy at home. In prior reviews under the Optional Protocol on the Sale of Children, ECPAT-USA has coordinated the lead alternative report (full disclosure: I serve as child rights advisor to ECPAT-USA). Following both prior reviews, NGOs organized briefing sessions in various cities in the United States. After 2008 review of the United States, several NGO representatives (including ECPAT-USA representatives and me) spoke at congressional briefings in the Senate and House of Representatives. Subsequent advocacy spurred the introduction of a bill that became the PROTECT Our Children Act of 2008. The law addressed some of the recommendations that emerged out of the reporting process (that process is described in more detail here). While that law isn’t perfect, it shows the potential that exists in the reporting process – the process can be successfully leveraged to advance human rights.
ECPAT-USA will again be coordinating the lead alternative report under the Optional Protocol on the Sale of Children. And again, there is an opportunity to further advance law and policy aimed at securing children’s rights and well-being.
Simply put, the reporting process is a built-in monitoring and evaluation mechanism for human rights. While the substantive provisions of human rights law are essential and provide the basis for our work, the procedural benefits of human rights treaties – notably the reporting process – should not be overlooked.
Monday, November 2, 2015
Last week Jeremiah Ho updated us on the status of anti-discrimination laws in the fifty states where discrimination is based on sexual identity. New York was cited as one state that is close to enacting such protections.
In 1945, New York passed its first Human Rights law which bans discrimination on several grounds. One section of the act reads, for example: