Monday, December 29, 2014
As reported in Newsweek and the New York Times earlier this month, years of advocacy efforts to establish a civil right to counsel, particularly in the area of housing evictions, may finally be paying off in New York City. New York's housing court is a notorious site of questionable justice, where a significant power embalance between landlords (typically represented by counsel) and tenants (typically unrepresented) plays out every weekday. Pilot programs studying the effect of civil counsel in Massachusetts and California, among others, have established that such assistance promotes fairer outcomes and more efficient case management. New York City now appears poised to move beyond pilots, to establish a civil right to counsel in housing eviction cases for individuals who cannot afford representation. While this would be a first for the U.S., it is by no means untested, since appointment of counsel in such situations is the longstanding norm for the 47 nations that make up the Council of Europe.
With a majority of the City Counsel behind the new proposal, its fate rests with the DeBlasio Administration, which -- according to press reports -- has yet to articulate a position.
Meanwhile, regardless of the outcome, kudos to the National Coalition for the Civil Right to Counsel for taking this issue from "pie in the sky" just a few years ago to a serious possibility -- and hopefully in 2015, a reality.
Friday, December 26, 2014
The University of Michigan Law School maintains a registry of the exonerated. According to the registry, nearly one hundred individuals were exonerated this year. With the assistance of innocence projects, law school clinics and other pro bono counsel, the wrongfully accused have garnered new hope since Attorney Barry Shek co-founded the first law school affiliated innocence project in 1992.
One exoneree, Kenneth F. Ireland, was appointed by Governor Daniel Malloy of Connecticut to serve on the state's Board of Pardons and Parole. The appointment is provisional until the legislature votes next year but in the meantime, Mr. Ireland has been an active member of the board. Governor Malloy is leading the way in acknowledging that there is much to be learned from the exonerated. Along with an apology, the state of Connecticut has acknowledged the many lessons that the wrongfully convicted can teach us about avoiding the mistakes of our past. Good news!
To read the most recently reported exoneration case reported on this blog click here.
Thursday, December 25, 2014
What's the good news?: On December 16, 2014, the Jackson, Mississippi City Council unanimously passed a resolution to create a Human Rights Charter and Commission that will support Jackson becoming the first Human Rights City in the historic South. Spurred by the deaths of Trayvon Martin, Eric Garner and others, supporters of the measure explained that "we plan to take a proactive approach to make Jackson a Human Rights City that respects, protects, and fulfills the human rights of all its inhabitants." At least one other southern city is contemplating a similar step, as the Mayor of Columbia, South Carolina announced his intention to create a Human Rights Commission in that city.
It will be exciting to see how Jackson activists proceed now that the formal mechanism to establish a human rights framework for the city is in place. In addition to local activists, several national-level actors have provided support to the campaign, including the National Economic and Social Rights Initiative and the U.S. Human Rights Network. This national network of supporters should be helpful as Jackson faces the hard work of actual human rights implementation going forward. A number of U.S. cities have, like Jackson, adopted the Human Rights City moniker, including Washington, D.C.; Pittsburgh, PA; and Boston, MA. However, many of them have found that human rights rhetoric is easier to sell than actual integration of human rights into local decisionmaking. In that respect, international models may be more instructive than our domestic examples. For instance, as previously described on this blog, Montreal has adopted an operative human rights framework that included creation of an ombudsperson tasked with bringing a human rights frame to bear on city-level issues. Graz (Austria), Mexico City (Mexico), Utrecht (the Netherlands) and York (England), are also potential models. In the U.S., San Francisco's implementation of CEDAW shows one mode of implementing human rights at the local level, with the San Francisco Department on the Status of Women spearheading the city's ongoing implementation efforts.
At a time when local governments are more and more important to the actualization of human rights worldwide, the good news is that Jackson has started down this road, apparently with committed activists on the ground, engagement of the local government, and good will from national human rights organizations.
Wednesday, December 24, 2014
We hope that our co-editors and readers are enjoying the start of winter break. For most, the holiday season means at least a few days off from our work. As much as we love what we do, time off from work is essential, particularly when we can spend time with nurturing family and friends.
In keeping with renewing our spirits, from December 25 - January 1 our blog posts will celebrate the good news of 2014. We acknowledge that much human rights work remains, however, we thought that taking time to celebrate the many human rights achievements of 2014 is important. These are collective, as well as individual, successes. If you have good news to share, please write to Margaret, who will be posting our good news during the next week. (email@example.com or firstname.lastname@example.org).
Wishing you a restful and happy week.
Martha and Margaret
Tuesday, December 23, 2014
Unfortunately, Jeannie Suk’s recent New Yorker posting on Teaching the Law of Rape misses the point. She writes that criminal law professors are considering not teaching the law of sexual assault because of student concerns that the topic may be “triggering.” The problem is not whether the topic should be discussed in the classroom. The issue is whether the instructors are creating an appropriate atmosphere for discussion of what for many men and women is a real and devastating event.
The question is not whether the law of rape is taught, the question is how is the law of rape being taught? As Vivian Huelgo, chief legal counsel for the American Bar Association’s Commission on Domestic and Sexual Violence commented, the issue is responsible teaching.
Just because students are voicing concerns that rape and other sexual assault topics can be triggering and re-traumatizing does not justify professors resolving those concerns by eliminating the topics. That may be tempting as an easy solution, but it is an extreme one. Rather, professors must consider their pedagogical approach to sensitive topics and to the impact of their teaching on students.
I, too, have heard student complaints.
Those complaints center on both the insensitivity of the instructors as well as the retriggering of traumatic events. One law student complained that a film shown in his criminal law class depicted a graphic rape while adding nothing to academic debate. That film was shown without warning. Others complain of “discussions” that amount to nothing more than victim blaming and that those comments are neither challenged nor defused by the instructor. Others complain of the failure of the professor to respond to misinformation, such as the myth that sexual assault complainants have a high rate of false reporting.
The academy is not exempt from employees who are either misogynists or, more commonly, lack empathy. Most often, professors lack knowledge on how to address serious and sensitive topics with which they might be uncomfortable. Consequently, some might avoid those topics, as many did post-Ferguson.
Sexual assault has devastating consequences for the survivors. Survivors struggle with loss of a sense of safety, fear of attacks being repeated, high rates of depression and for some, symptoms of post-traumatic stress disorder. Student concerns on how classes on rape are conducted and whether warnings should be given are valid and must be addressed.
In other contexts, professors would offer solutions. For example, would a film or history professor who intends to show “Hurt Locker” in class not consider the potential impact on the one third of his class that are recent returning war veterans? If no warning was given to the class of what was about to happen, would the resulting re-triggering of traumatic symptoms be unexpected? In Trauma and Recovery, Dr. Judith Herman documented the commonality of responses between intimate partner abuse survivors and returning war veterans. For whatever reason, when gender is added to the discussion, the sensitivity factor diminishes.
Unlike the returning veteran, the sexually assaulted student in the criminal law classroom might have her assailant sitting nearby.
Perhaps the real dilemma is the instructor’s lack of information on the frequency of sexual assault. While sexual assault rates cannot be accurately stated as the crime is under-reported,we know that 25-33% of US women report having been sexually assaulted. Nearly that many gay or disabled men report the same. Other marginalized individuals, such as transgender women, report even higher rates of assault along with women of color, particularly immigrant, African American and Native women. Men and women serving in the military, as well as the incarcerated, report frequent sexual assaults. Armed with this information, any professor can anticipate stronger than usual reactions to a discussion of rape.
The result is not perverse. These are necessary conversations.
Solutions are not difficult. Adverse consequences should not result from a student’s election to forego classes that address rape. Professors must be prepared to curb any “jokes” on the topic and quickly debunk and otherwise address any myths and stereotypes that are voiced during discussion. Sensitivity in how questions are framed is essential. While having students argue positions with which they do not personally agree is a sound pedagogical method, classes that address sexual assault may not be the appropriate setting for the method.
The solution is not to forego teaching the law of rape. For many reasons, the information is important for all law students, and especially so for any considering careers in criminal defense or prosecution.
The solution is responsible teaching.
Monday, December 22, 2014
Friday, December 19, 2014
Several newly published responses to Eric Posner's Twilight of Human Rights Law continue to take issue with his basic argument that human rights law has failed to accomplish its objectives. One of the best is in the current issue of Democracy: A Journal of Ideas. Harvard Professor Beth Simmons, who has been around the block with Professor Posner a few times on these issues, turns an informed and critical eye on Posner's claims. "News flash," she writes. "Human rights law has not altered human nature. But in numerous instances, it has altered human behavior."
According to Simmons, Posner looks at human rights law with blinders of his own making:
"[W]hile much of Posner’s critique is on target, especially his observation that international organizations are ill-equipped and states are uninterested in enforcing human rights around the world, the conclusion—that international human rights law is thus useless—is neither logically compelling nor supported by the evidence that Posner himself presents. The book announces the “twilight” of international human rights law by focusing overwhelmingly on states and intergovernmental institutions. This account misses most of the meaningful human rights action, which has taken place largely between stakeholders and their governments at the domestic level."
In particular, Simmons points out that "[h]uman rights obligations are useful tools for a populace to demand more attention to basic human rights and needs than the state may be currently devoting" -- a phenomenon that she explored in great depth in her award-winning book Mobilizing for Human Rights: International Law in Domestic Politics. Noting the absence of the usual scholarly citations from Posner's volume, Simmons concludes that "Posner leads his readers patiently, if tendentiously, through the history of international human rights law and the institutional lay of the land. But it is precisely the less initiated who should be most wary" of this account.
Thursday, December 18, 2014
Unless the U.S. Fully Implements The Convention Against Torture,We Will Continue To Dispute Whether Waterboarding is Legal
Congress’s recently-released report on CIA interrogation methods leaves no doubt that the U.S. violated the letter and spirit of the Convention Against Torture (CAT), the international human rights treaty that it ratified in 1994. CAT is an unequivocal statement that torture violates fundamental human rights. Yet, our elected officials are still debating for the second time since 2004, when the Abu Ghraib photographs were published, whether waterboarding, submerging persons in water, extreme physical abuse, prolonged and deliberate exposure to extreme temperatures, physical stress and sexual humiliation are legal.
Under Articles 1 and 4 of the CAT, the definition of torture must be written into the criminal codes of signatory countries. Article 5 requires countries to “take such measures as may be necessary to establish its jurisdiction over [these] offences.” Congress ignored these directives. Instead, the year it ratified CAT, Congress passed watered-down legislation, the Federal Torture Statute, that severely altered the CAT and its reach.
Legislative history shows that Congress believed that acts that would violate CAT would already “be covered by existing applicable federal and state statutes.” For example, Congress believed that the existence of criminal statutes for assault, manslaughter, and murder were sufficient to satisfy the U.S.s’ treaty compliance requirements. But, these domestic criminal provisions, while punishing specific crimes that a torturer might commit while torturing, do not explicitly punish torture. This is significant. By failing to implement all provisions of the CAT domestically, Congress left open the questions of whether torture itself was illegal.
Indeed, Congress never explicitly outlawed torture as a crime inside the United States, even though the treaty requires state parties to “ensure that all acts of torture are offences under its criminal law.” The Federal Torture Statute only criminalizes torture, occurring outside the United States (including at military installations under U.S. jurisdiction), in violation of Article 2 of CAT.
The so-called “Torture Memos” drafted by John Yoo (now a Professor at Berkeley Law School) and signed by Jay Bybee (now a federal appeals court judge with life tenure) during 2002–2005 gave the green light for the U.S. to torture. The memos depict an administration worried about breaking the law. Specifically, the memos sought to answer whether “certain [enhanced] interrogation methods,” namely waterboarding, violated the Federal Torture Statute. Under any honest interpretation, those interrogation methods constitute torture. Indeed, the United States prosecuted Japanese soldiers for torture in World War II for similar acts. But, while CAT’s strong language broadly condemns intentionally inflicted “severe pain or suffering, whether physical or mental” for purposes of obtaining information or a confession, the Federal Torture Statute does not adopt this definition.
CAT requires the torturer to have “general intent” to harm, whereas the U.S. requires “specific intent.” Because of this heightened “intent”requirement, a Torture Memo dated August 1, 2001 concludes that “even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent.” Thus, according to the Torture Memos, a suspect can be waterboarded 183 times in one month (nearly six times a day), if causing harm is “not [the] objective.” In fact, one of the Memos “discuss[ed] the potential [for] the President to approve the maiming, drugging or applying ‘scalding water, corrosive acid or caustic substance’ on detainees.”
After declassification and public release of the Torture Memos, some members of Congress attempted to draft acceptable detainee interrogation techniques and debated whether to make torture, as defined by the CAT illegal. At the end of the day, even the currently outspoken torture critic, Senator John McCain, sided with the Bush administration and voted not to require CIA interrogation methods to comply with the CAT.
Even though certain interrogation techniques like waterboarding have been declared illegal by the Justice Department and President Obama’s 2009 Executive Order, a remorseless President Bush stated in his 2010 memoirs that when the CIA asked for permission to torture, he responded “damn right.” Other Republican leaders including John Cornyn, Mitt Romney and Michelle Bachman have made similar statements.
This embarrassing and shameful national debate that we are once-again having about whether torture is or should be illegal could not take place if the CAT had been fully implemented into the U.S.’s legal infrastructure. The world has already defined torture in the CAT. Congress redefined torture, and watered it down to such a degree that permitted the atrocities at Abu Ghraib and Guantanamo Bay to take place without legal repercussions.
Congress’s newly-released horrifying report exposing the breadth of the U.S.’s use of torture shows that it is necessary to enact legislation to fully incorporate human rights treaties, as they were negotiated and drafted in collaboration with other nations, into U.S. law.
[Editors' Note: Professor Penny Venetis, a leading U.S. human rights advocate, has just been appointed as Executive Vice President and Legal Director of Legal Momentum: Women's Legal Defense and Education Fund. We look forward to Penny's continued human rights leadership in this new position!]
Wednesday, December 17, 2014
New Climate Change Agreement May Include Human Rights Protections
The global climate change talks this last week were much overshadowed by the release of the torture report, mass protests and other news, but potentially have significant implications for the human right to a healthy environment.
The 20th session of the Conference of the Parties (COP20) to the U.N. Framework Convention on Climate Change (UNFCCC) took place on December 1-13, 2014, in Lima Peru with thousands of people in attendance from all over the world. The COP20 was the last decision-making meeting before the next meeting in December 2015 to be held in Paris, where countries are expected to sign a new climate agreement. The outcome of the COP20 was a draft of the agreement to be negotiated signed next year. Human rights and environmental justice advocates, including several U.N. Special Rapporteurs (in 2014 and 2009), Mary Robinson, the Center for International Environmental Law, and others, have called for a human rights-based approach for the new climate agreement. Specifically, we are hoping for language in the 2015 climate agreement that provides that the Parties shall respect, protect, promote, and fulfil human rights for all. A side event was organized on December 10, Human Rights Day, in Lima at COP20 to discuss how governments could forge an effective climate deal built on human rights. You can watch a webcast of that event here.
As background, the UNFCCC was signed in 1992 and has near universal membership, with196 parties to the agreement. The UNFCCC is the parent treaty to the Kyoto Protocol, which has 192. The objective of both treaties is to stabilize greenhouse gas concentrations in the atmosphere to prevent “dangerous human interference” with the climate system. However, while the UNFCCC is a landmark treaty that recognized negative impacts of human interference with the climate system, it had no teeth. The Kyoto Protocol set actual emission reduction goals and a timeline for meeting those goals. The Kyoto Protocol also focused on developed countries, not developing countries. China, the largest emitter of greenhouse gases, is not bound to reduce emissions by the Protocol as a developing nation. The U.S., the second largest emitter of greenhouse gases, ratified the UNFCCC but not the Kyoto Protocol. Lastly, Neither the UNFCC nor the Protocol mentions human rights. It is also important to note that there is a history of environmental treaties including human rights language, including the 1972 Stockholm Declaration, as was noted by John Knox, U.N. Independent Expert on human rights and the environment.
There is some good news. The most recently released draft text of the 2015 agreement does include a mention of human rights in the preamble:
Stressing that all actions to address climate change and all the processes established under this agreement should ensure a gender-responsive approach, take into account environmental integrity / the protection of the integrity of Mother Earth, and respect human rights, the right to development and the rights of indigenous peoples
None of the draft has actually been agreed upon yet and I am cautiously optimistic that as negotiations continue next year, even better language may be included. Stay tuned.
Tuesday, December 16, 2014
By Hope Metcalf
This week, the U.S. Senate Select Committee on Intelligence finally released its report on the Central Intelligence Agency’s detention, and interrogation program. The report confirms what countless survivors, whistleblowers, journalists, military leaders, advocates, and lawyers – not to mention UN Special Rapporteurs, Canadian and British inquests, the Council of Europe, and the European Court of Human Rights – have asserted for more than a decade: the United States engaged in an elaborately planned, clandestine system of torture.
Many have rushed to minimize the report’s significance. Bush-era defenders predictably point to the failure to interview CIA staff; they neglect to mention that investigators were met with opposition and stonewalling at every step. John Yoo has even stepped out of the shadows of tenure at Berkeley to trot out his empty legal justifications. Meanwhile, Charles Hayden points to the DOJ opinions as proof of the CIA’s good faith and complains that the report doesn’t tell the full story, while refusing to offer any alternative facts. The merry-go-round keeps spinning.
More surprising are the reactions by the very people – myself included – who should welcome the report. The report doesn’t go far enough. It rehashes what we already knew. The American people have watched so much “24” and “Homeland” and “Zero Dark Thirty” that this moment will fizzle just like everything else has so far. In other words, so what?
Then I read the 528 pages.
Here’s why it matters. Until now, our collective view of the CIA’s unlawful acts have come in bits and pieces from survivors and whistleblowers. For years, I worked alongside lawyers and law students to bring civil claims on behalf of survivors against the high-level officials and contractors responsible for their torture. In trying to reconstruct a narrative from available information, I often felt like I had a hood over my head, able only to see just the shoes of the person in front of me, hearing echoes of terrible things happening down the hall, unable to name my captor, let alone to make any sense of it all.
Now, we have a fuller picture and from the inside. We know, for example, that the entire program was premised on pseudo-science peddled by two military contractors. Those men, Bruce Jessen and James Mitchell, ultimately received $81 million for their services. We also know that the CIA pushed for a legal green light and received it. The reason why the Bybee-Yoo memo included the astonishing assertions that any subsequent criminal torture prosecutions could be trumped by the President’s Article II powers or “necessity defense”? Because, in the words of John Yoo: “They want it in there.”
Perhaps more important, as Harold Hongju Koh points out, the Senate report effectively ends “the torture debate.” The report goes into surprising detail to debunk the most common claims about the various plots that were foiled by brave interrogators. What we read, instead, is that the information yielded through tortuous means was irrelevant, wrong, or superfluous. Far more effective were the tried and tested methods of intelligence gathering and foreign partnership.
Yet there is much the report does not and cannot do. To date, no torture survivor has had his or her day in court. And no one responsible for the torture has had to answer for his or her actions.
At least not in the United States. By contrast, Canada and the United Kingdom have reckoned with their own complicity, and the European Court of Human Rights has found violations by Poland and Macedonia for their roles.
Is there any path in the United States to accountability, not just an accounting? President Obama plainly wishes to turn the page on history. Many wish to see criminal prosecutions, and some advise a return to the proposal by Senator Patrick Leahy for a commission of inquiry. The ACLU’s Anthony Romero suggests a cynical compromise: pardon the torture architects so as to establish the illegality of their actions.
Part of me sees the appeal of President Obama’s urging us to move forward. How can the public be expected to care about the CIA’s abuse of terrorism suspects more than a decade ago when the nation is reckoning with the widespread (and long-standing) reality that Black men face harassment by local police and even the risk of extrajudicial execution? Our nation is adrift and listing precariously to one side, already full to the brim of injustice, tragedy, mistrust. Can we afford to take on more water?
Last week I witnessed a beautiful enactment of collective demands for justice led by a coalition of students at my law school. They marched hand-in-hand and single file from the law school to the federal courthouse before lying down in the street to mark a minute for every hour that Michael Brown’s body lay, abandoned and abused, on the ground. Seeing their fresh anger and hope, I felt a swell of optimism.
Perhaps, I thought, this boat can float.
Then, in reading the Senate report, I heard a sucking sound. The crimes are different, but the logic is the same. So long as some bodies are more valued than others. So long as some people may be sacrificed so that others may feel safe. So long as law bends to politics. So long as those in power can joke or boast about their illegal acts. So long as the costs of dissent push many into silence. I fear there is a hole in the bottom of this boat.
For us to move on as a nation, we must have—at a minimum—a collective reckoning of what unfolded in the years following 9/11. The Senate report is a start. It confirms the long-ignored claims of those who suffered, and it vindicates the brave men and women in uniform who rejected the turn to sadism. But the report stops short of accountability. A true commission of inquiry would give all participants an opportunity to air their version of events, would provide for the compensation of victims and their families, would provide the opportunity to ask for and to receive an apology, and would bind us publicly to foreswear future abuses. It is our best chance to set ourselves aright.
Monday, December 15, 2014
Now, Sally-Anne Way has written a fascinating article in the current issue of Human Rights Quarterly, vol. 36 (Nov, 2014), pp. 869-897, that examines the early U.S. position on economic, social and cultural rights in greater historical detail. The article is titled:
The "Myth" and Mystery of US History on Economic, Social, and Cultural Rights: The 1947 "United States Suggestions for Articles to be Incorporated in an International Bill of Rights."
Here is the abstract:
This article examines the official position of the United States on economic, social, and cultural rights during the drafting of the Universal Declaration of Human Rights, the detail of which is mysteriously absent from contemporary histories of human rights. An overlooked June 1947 US draft for an international bill of rights proves beyond doubt early official US support for economic, social, and cultural rights, if only in an aspirational Declaration rather than a legally-binding Covenant. The official US position shifted significantly over 1947 and 1948, but this US draft remained surprisingly significant for the eventual phrasing of the 1966 International Covenant on these rights.
Thursday, December 11, 2014
by Professor Michael Meltsner, Northeastern University School of Law, Guest Editor
By this time readers of the Human Rights at Home Blog are generally familiar with the appalling details revealed by the Report of the Senate Select Committee on Intelligence. That the United States has engaged, to quote the text, in the “use of brutal interrogation techniques in violation of U.S. law, treaty obligations, and our values” is hardly news to those who have followed the nation’s reaction to 9/11, the terms of the Patriot Act, the creation of a prison at Guantanamo, the Abu Ghraib photographs, the John Yoo definition of torture, Vice President Cheney “Dark Side” comments, Defense Secretary Rumsfeld beliefs about forced standing, and the reports of a cadre of intrepid and courageous journalists, writers and pro bono lawyers, Jane Mayer and Stephen Oleskey to name just two of many, as well as a few whistleblowers, who have documented the C.I.A.s and the military’s activities at Guantanamo, so called Black Sites around the world and countries used for their friendly surrogate security services by means of international rendition. Indeed, we engaged in what the Report calls “improper action” throughout “the war on terror” at least until President Obama issued an executive order on his second day in office (and for all we know we still do).
Of course, the remarkable research delivered in the 499 page “Executive Summary” (of a supposed 6,000 page document) provides enough provocative detail that (despite redactions) well justifies a careful reading (Warning: not for the faint of heart.) The media has largely focused on the question of whether torture (or whatever euphemism comes to mind) produces “actionable intelligence,” whether the C.I.A. lied to higher ups and Congress, and whether the Report will lead to some form of accountability.
Each of these, plus a number other issues that leap out from the Report’s conclusions are obviously worthy of serious debate, especially the way in which dubious legal interpretations were consistently employed to justify whatever horrific treatment was on the Agency’s agenda. But the big news for me in the long awaited and oft disputed publication of the Report is political. Just how will a nation that is split ideologically and pragmatically over most everything that matters in public policy react to official revelations that we crossed a moral threshold? Republicans, with the exception of John McCain and a few allies, seem to find release of the information worse than the conduct of the interrogators. The former Bush officials and C.I.A. operatives who have chimed in to criticize have so far been short on facts, perhaps because Senate staffers craftily used the very language of Agency officers to make their case. Senate Democrats rely on what the New York Times correctly calls the “meticulous detail” of the Report’s findings to convey its credibility but they have to deal with a President whose cautious response must reflect a government dependent on C.I.A. national security calculations.
The key I think is not so much the next moves of government players but what happens in the country at large. So far the Jack Bauer narrative and “24” has made more of an impact on the nation than “Do onto others” or “what does becoming a torturer do to us?” But the Report is bound to stimulate public debate and ultimately should reveal the extent to which Americans believe the end of a reduction in the fear of an enemy justifies means that are not only illegal but plainly lead to swelling the ranks of the enemy. The same inability to think about proportion that characterizes our (world leading) mass incarceration penal system has so far been evident. Does a felt necessity excuse behavior that in other circumstances would be condemned? If torture “works” does that make it ok? And what is the definition of what “works”? Perhaps we will find out. Perhaps not. The United States today is a nation without consensus on major issues and if the public does not demand limits in the long run there will be few remaining. Unless the nation can be read to support an end to the culture of torture, history suggests the C.I.A. or some other aspect of power will let the dust settle and then get on with it again. If you doubt me take a look at the Church Report or the story of Guatemala in the 1950s or the fate of Salvador Allende. Without a committed public, expediency rules.
Michael Meltsner is the author of In Our Name: A Play of the Torture Years and The Making of a Civil Rights Lawyer. He is the Matthews Distinguished University Professor of Law at Northeastern University in Boston.
Wednesday, December 10, 2014
by Risa E. Kaufman
On this Human Rights Day, it seems particularly compelling to renew the call for a national human rights institution (NHRI) in the United States. Every week offers new and stark examples of the need for continual, vigilant and independent review of the nation’s commitment to and compliance with its international human rights commitments. Yet, the U.S. has no central body to monitor and report on human rights compliance by federal, state and local authorities, and no independent body to assess legislation, policies and practices in light of human rights principles and impacts. This is in sharp contrast to the over 100 countries around the world with national human rights institutions (though, to be sure, these institutions vary in form, function and effectiveness).
The range of pressing issues explored during yesterday’s hearing by the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights on the State of Civil and Human Rights in the United States underscores the urgent need for such a mechanism. Indeed, we’ve just concluded an extraordinary year in which U.N. expert committees reviewed the U.S. for its compliance with each of the core human rights treaties that it has ratified, and issued hard hitting, and remarkably consistent, recommendations for how the U.S. can improve its human rights record. Yet, there is no independent and comprehensive mechanism for analyzing and assessing the resulting Concluding Observations, or for communicating the treaty bodies’ recommendations to the state and local officials with front line responsibilities for ensuring that the U.S. meets its human rights obligations.
In the course of reviewing the United States, both the Committee on the Elimination of All Forms of Racial Discrimination and the Human Rights Committee noted concern with the lack of a national human rights institution within the U.S., and urged the United States to create such an institution. The CERD Committee, in particular, urged the U.S. to: "create a permanent and effective coordinating mechanism, such as a national human rights institution … to ensure the effective implementation of the Convention throughout the State party and territories under its effective control; monitor compliance of domestic laws and policies with the provisions of the Convention; and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels."
When asked by U.N. treaty bodies what steps it is taking to develop an NHRI, the U.S. demurs, pointing to “multiple complementary protections and mechanisms” in the United States which “serve to reinforce the ability of the United States to guarantee respect for human rights, including through its independent judiciary at both federal and state levels.” Yet, these are no replacement for an independent human rights monitoring body.
The U.S. need not start with a blank slate in developing an NHRI. A set of non-binding international principles (“The Paris Principles”) endorsed by the U.N. General Assembly establishes minimum standards for such institutions. As a general matter, they call for NHRIs to have a broad mandate, take on advisory, educational and internationally participatory roles, and be politically independent and comprised of a pluralistic membership. Significantly, the Paris Principles explicitly call upon national human rights bodies to “setup local or regional sections” or “maintain consultation with the other bodies . . . responsible for the promotion and protection of human rights.”
U.S. advocates have called for a U.S. human rights institution with a broad mandate to address the full range of human rights concerns in the United States, and with the ability to monitor human rights compliance, raise awareness of civil and human rights norms, engage with government officials, and investigate how policies play out on the ground in local communities. This could be done through fact-finding, advising and report writing, research, agency monitoring, and engaging with civil society and with regional and international human rights bodies. Some or all of these functions could be done through the existing U.S. Civil Rights Commission.
Alongside (and until) a U.S. human rights institution, state and local human rights commissions can help to fill the gaps in human rights monitoring and review. Indeed, some are beginning to do so. Earlier this year, the Tennessee Human Rights Commission held a series of four hearings in communities across the state, examining issues including employment discrimination, housing, access to programs and services, justice and law enforcement, immigration, discrimination faced by the LGBT community, voting rights, homelessness, disability rights, education, and violence against women. Last month, the Commission issued a report summarizing the testimony and recommendations collected at the hearings. Berkley’s Peace and Justice Commission submitted a municipal report this year to the U.N. Committee Against Torture examining local issues including overpolicing, state prison conditions, and hate crimes. There are many other examples, too.
The energy and momentum built throughout the past year of U.S. human rights treaty reviews, coupled with the remarkable activism and advocacy of recent weeks, should fuel the conversation for how to sustain critical examination of the U.S.’s compliance with its international human rights obligations, and promote human rights more generally. A U.S. human rights institution would go a long way.
Tuesday, December 9, 2014
Deborah M. Weissman and Leigh Goodmark
In recent months, as summits were held on many campuses in preparation for new and improved protocols to respond to gender-based violence, and the Ray Rice incident created opportunities for public debate about the problem, Eric Gardner was killed by NY police in a choke hold while being arrested for selling single cigarettes in the street, Mike Brown was shot, hands up, in Ferguson, Ezell Ford was killed by Los Angeles police, witnesses say while he was lying in the street, and Tamir Rice, a 12-year-old boy, was shot and killed by a policeman judged unfit for duty two years prior. The failure of the criminal justice system to obtain accountability for violence by police officers demonstrates the seeming intractability of racism and police abuse.
There is an important connection between these two sets of seemingly disparate events. How do the recent cases of racial violence by police authorities implicate gender based violence? Farah Tanis, the co-founder of Black Women’s Blueprint, explains that events in Ferguson demonstrate that “[w]hen sexual violation is not placed squarely in the context of racial justice issues, it silences survivors.”
Scholars and advocates have articulated concerns about the dissipating ties between domestic violence advocacy groups and the civil rights movement from which they emerged. The politics of “unmodified feminism,” as Angela Harris has noted, has shaped the paradigmatic law-and-order response to domestic violence with troubling consequences that have been exhaustively examined. Even as domestic violence has been properly reframed as a human rights issue, much of the focus of this initiative has invoked demands for a more vigorous police response.
The current crisis of systemic racism manifested in police practices makes evident that domestic violence advocates must intentionally realign themselves to join with the civil rights movement to dismantle racist police practices. Domestic violence advocacy groups with traditions of mainstream identity politics have been absent from coalition efforts to litigate and legislate an end to racial profiling. For example, in Maryland v. King, the U.S. Supreme Court was asked to consider whether the states could require individuals in police custody who were not yet convicted to give DNA samples to law enforcement without violating their Fourth Amendment rights to be free from unreasonable search and seizure. Amicus briefs were filed by a consortium of civil rights groups who argued that such acts that appear to be neutral on their face have been used disproportionally as investigatory tools against minority populations and provide an incentive for pretextual and race-based stops and arrests for the purpose of DNA sampling. State-based domestic violence organizations and “federally recognized state sexual assault coalitions,” however, aligned themselves with law and order interests and also appeared as amicus in the case, arguing for upholding the statute. To be sure, domestic violence and sexual assault amici have a compelling argument that DNA evidence may facilitate rape prosecutions, but as experts have noted, “[p]utting DNA from arrestees into databanks also exposes more innocent people to the risk of false accusation or conviction.” Perhaps more significantly, nowhere in their brief did the domestic violence and sexual assault agencies express any concerns about the well-documented problem of racial profiling practices or advocate for the law to be implemented in a racially neutral way, although they could have done so without weakening their position in support of upholding the statute.
It is already well-documented that people of color, immigrants, LGTBQ, and poor people are reluctant to seek police protection from abusive partners. As campus policies pertaining to sexual assault develop, students have questioned whether calling the police or reporting enforces structural oppression. Domestic violence groups must seize upon opportunities to expand advocacy into broader social justice networks, and create opportunities to untether solutions to gender-based violence from a failed racist criminal justice system that has done little to ameliorate the problem of violence against women.
An amendment that has gutted parts of the Prison Rape Elimination Act gives domestic violence advocates an opportunity to join with social justice advocates to curtail abuses endemic to the criminal justice system. Passed with bipartisan support in 2003 and signed by then-President George W. Bush in response to evidence of the startlingly high rates of rape and sexual abuse in correctional facilities, the Prison Rape Elimination Act prohibits sexual misconduct in prisons and requires states to investigate and appropriately respond to allegations of violations. Among PREA’s requirements is that states certify by May 2014 that they are in compliance with PREA or that they intend to comply. But earlier this year, the Senate Judiciary Committee adopted an amendment that essentially gutted that requirement by eliminating most of the financial penalties that states faced if they failed to comply with PREA. The amendment was offered by Republican Senator John Corwyn of Texas (one of the states most vocally opposed to the compliance requirement)--and supported by Democratic Senate Judiciary Chairman Pat Leahy. Why would the Committee support an amendment that so thoroughly de-fanged PREA? (link to https://www.themarshallproject.org/2014/12/02/delay-defy-defang). To protect victims of domestic violence.
During the hearings on the Amendment, Senator Corwyn explained that funds for PREA enforcement were tied to grants for police and victims of domestic violence. If states failed to comply with PREA’s requirements, they risked losing those funds. Rather than harm victims of domestic violence, the committee seems to have decided, they would allow states to evade PREA’s requirements instead.
As SpearIt, a law professor from the Thurgood Marshall School of Law at Texas Southern University, pointed out last February at CONVERGE! Re-Imagining the Movement to End Gender Violence (link: http://www.law.miami.edu/academics/converge/) , prison rape is part of the cycle of gender violence in many low income communities. Men and women who experience sexual violence in prison bring that trauma back into their communities, where it plays out in their own interpersonal relationships. Domestic violence advocates should care about the elimination of prison sexual violence, both because it is an atrocity and a human rights violation in and of itself and because it is part of a spectrum of gender violence tied directly to intimate partner violence. Domestic violence advocates should join the National Prison Rape Elimination Commission and other human rights organizations seeking to overturn this shortsighted decision. Domestic violence advocates should not allow ourselves to be used as a pretext for Texas and other states to continue shirking their responsibilities under PREA.
Monday, December 8, 2014
The world recently celebrated the 25th anniversary of the UN Convention on the Rights of the Child. As is often the case with international human rights events, Universal Children’s Day (November 20) received much more attention from policymakers and civil society in other countries. That’s regrettable, because millions of children in the United States face pressing needs. A new report by UNICEF finds that nearly one-third of US children live in poverty, leaving the U.S. ranked 36th out of 41 developed countries. “Between 2006 and 2001, child poverty increased in 34 states,” according to UNICEF. On a host of other measures, U.S. children do not fare as well as children in many other developed nations.
That the U.S. needs to make a greater commitment to ensuring the rights and well-being of all children is clear. A critical step is to reassess our strategy for securing child well-being. That process must include children and adolescents, not just because children’s rights law provides that every child has the right to participate in decisions that affect his or her life, but because children have important insights.
The ChildFund Alliance recently polled over 6,000 children from around the world, including children in the United States. Children’s responses to two questions are insightful:
First, children were asked: “Children have the right to protection from work that harms them and is bad for their health and education. How often, do you think, are children being protected from doing work that is harmful in your country?”
Far fewer U.S. children thought they had adequate protection: “Of children surveyed in developed countries, those from Ireland (85%), Sweden (84%) and Japan (81%) are most likely to report children in their country being protected always or often, in contrast with children from the USA (40%).”
Second, children were asked: “Children have the right to give their own opinion and for adults to take it seriously. How often, do you think, this is happening in your country?”
Far fewer U.S. children reported having an opportunity to participate and be heard: “Of children from developed countries, those surveyed in Sweden (50%), France (49%) and Korea (46%) are most likely to say that children are always or often heard and taken seriously, in contrast with those in USA (22%).”
These results highlight both the importance of listening to children generally and, more specifically, children’s insights into how the U.S. is doing. If the U.S. is to make meaningful progress on children’s rights and child poverty, policies and programs must be responsive to children’s needs and must include children’s perspectives in the development, implementation and evaluation of those policies and programs.
Friday, December 5, 2014
The followingg is written by three Cornell who recently engaged in Human Rights Advocacy. Baldwin, Joseph and Matos are student members of Cornell Law School’s Global Gender Justice Clinic.
Bringing Human Rights Home: Legislative Advocacy in Tompkins County, NY
By Josh Baldwin, Joanne Joseph and Carolyn Matos
On November 18, 2014, the Tompkins County Legislature unanimously passed a resolution declaring that freedom from domestic violence is a human right. Tompkins County became the fourteenth locality, and the first exclusively rural community, to pass such a resolution. The Global Gender Justice Clinic at Cornell Law School is proud to have achieved this goal.
As a clinic team, we were excited to work, together with the Advocacy Center of Tompkins County, Cornell Law School’s Avon Global Center for Women and Justice, and Prof. Elizabeth Brundige on a project that brought human rights home. It was important for us to work on local human rights issues since there are still many human rights violations in the United States, though they often are not discussed in human rights terms. The Supreme Court decision of Town of Castle Rock v. Gonzales, where the Court held that the plaintiff did not have a constitutionally protected right to the enforcement of her restraining order, illustrated this point to us.
This semester, the team drafted the resolution along with a background paper discussing its context and importance. We also launched a petition to gather community support for our resolution and were able to collect more than 400 signatures. One of the most rewarding experiences this semester was working with a local legislator to improve the language of our draft in response to questions that she and her colleagues had raised.
Working with a local partner, the Advocacy Center of Tompkins County, an organization that provides services to survivors of domestic violence, was extremely beneficial and rewarding. The Advocacy Center provided great feedback on our drafts and invaluable assistance in reaching community members and helping us understand the complexity of the issues surrounding domestic violence. We partnered with them throughout Domestic Violence Awareness Month and participated in several community events, including screenings of the documentary Telling Amy’s Story in a local cinema as well as at Cornell.
We encountered a few challenges this semester, but learning to overcome them was incredibly gratifying. One of the issues we grappled with was whether to refer in the resolution to “domestic violence” or “intimate partner violence.” This issue was discussed at length, and, with our Advocacy Center partners, we ultimately decided to use “domestic violence” and explain what it includes, because the term was broader, would cover more survivors, and would be more familiar to our local community.
Engaging in local advocacy was a sometimes difficult, but ultimately rewarding, experience. For example, we were pushed out of our comfort zone by tackling new media of advocacy, from being featured on a local radio talk show to writing a column in a local newspaper. We addressed the legislature, community members, and community stakeholders several times, which strengthened our public speaking and advocacy skills. We also improved our writing skills and our ability to work together as a cohesive team.
We will continue advocating for the passage of similar resolutions by the Ithaca Town Board, City of Ithaca Common Council, and Tompkins County Council of Governments, and we also hope to undertake future projects to address their implementation. This was one of the most rewarding experiences of our law school careers, and we are honored to have been part of a human rights clinic that addresses human rightswithin the United States.
Thursday, December 4, 2014
Fran Quigley addresses the very real problems of the working poor, who are so ofen ignored in contemporary culture.
Judging by online message boards and the pronouncements of some politicians, it is easy for some of us to treat the working poor as an abstraction.
So allow me to introduce Ana Rosas. If the statistic that one in every four private sector workers earns less than $10 per hour seems a little remote, ask Rosas about the challenge of working as a janitor in downtown Indianapolis. She can tell you how wages of $8 per hour, and take-home pay of less than $300 each week, translates to standing in line at the church food pantry. Ask her about her humiliation when asking for loans from family and friends in order to pay the rent.
Perhaps it is tempting to dismiss the working poor as somewhat lazy. That temptation disappears when Rosas describes the excruciating back and leg pain that is a predictable result of a 54 year-old woman mopping, vacuuming, and hauling trash 40 hours each week. Like nearly half of the Indiana private sector workforce, Rosas had no paid sick days in her janitorial job. Every evening, she put aside her pain and limped into work.
Record levels of local and national income inequality may not seem tangible to us. If so, ask Rosas about how she scrubbed the toilets used by lawyers and business executives who take home wages 10 times or greater than hers. During the day, the occupants of those offices arrange for vacation homes and season tickets. At night, Rosas wipes down their desks and worries about eviction notices and filling prescriptions.
Maybe we shake our head in disapproval at teenagers flunking out of school after no one was home to oversee homework. Judgment becomes a little harder to issue when Rosas explains that her husband died when she was pregnant with their second child. Leaving her teenagers home while she worked until 1AM was a necessity, not a choice.
The limited protection of U.S. labor laws can seem like just words on a page. The one in five union activists who get fired for speaking out may come off as mere data points. At least until you talk with Rosas about when she asked for a raise and expressed her desire to be represented by the Service Employees International Union. She was fired days later.
An unfair labor practice charge has been filed and awaits a ruling. But in the meantime, Rosas is without permanent work and the company is likely to be safe from any more union talk at the workplace. The worst case scenario for the company is likely being forced to give Rosas some back pay. As University of Oregon professor Gordon Lafer has said, U.S. labor law’s limited deterrence to employers is akin to making the worst punishment for a burglar the prospect that they may have to return the stolen items.
It is not surprising that Ana Rosas is invisible to so many of us. The lawyers and the business executives whose offices she cleaned work for big-name companies whose names we all would recognize. But they did not directly employ Ana Rosas or her colleagues. The law firms and corporations leave that to a property manager, Ambrose Property Group. Turns out Ambrose delegates that unpleasantness out, too, leaving the janitors to work for a low-profile contractor, Sunshine Maintenance Services. (Ambrose declined to comment for this column, saying the matter is between Sunshine and its employee. Sunshine did not reply to my request for comment.)
So you may not know Ana Rosas. But she knows you. She knows people think $7.25 per hour is just fine for a minimum wage. She knows that people believe employers should be able to crush a union whenever they wish.
But she wonders if you would still hold onto those views if you had to confront her reality. If you had to go to work when you were sick or hurt. If you were fired for speaking out. If you tried raising a family on poverty wages.
Rosas has been composed while explaining her struggles, but finally her voice starts to rise. “Are you able to live on $8 per hour?” she asks. “Do the math and tell me how this is supposed to work.”
Now, tears of frustration begin to flow. They are no abstraction, either.
Wednesday, December 3, 2014
Prof. Kalantry continues her response to Eric Posner's critique of International Human Rights Clinics.
To say that IHR clinics are driven by nothing other than the beliefs of those who teach them is also wrong. Most IHR clinics partner with non-governmental organizations and view them as “client” organizations. It is the goals of those client organizations that drive the work. Law clinic students—much like lawyers do—guide and advise their clients. Other IHR clinics allow students to choose the projects undertaken by the clinic; thus many IHR clinic projects are not simply defined by the professor that teaches it.
Third, because Posner believes that international human rights law has no impact, he also wonders whether IHR clinic projects “do any good.” He wonders whether a resolution by the Chicago City council—that domestic violence is a human rights violation—would reduce domestic violence. The purpose of the resolution on domestic violence is (among other things) to bring the United States closer to its international obligations, including strengthening the enforcement of a recent Inter-American Commission on Human Rights decision that found the United States to be in violation of its obligations to protect domestic violence victims and their families. But this is precisely why Posner would think this project is pointless—because it attempts to draw the United States closer to its international law obligations.
There are also many examples where IHR clinics have impacted court decisions. For example, my students worked with Colombian lawyers who successfully argued that charging for primary education is not consistent with Colombia’s international human rights treaty obligations. But to define “impact” as winning or losing a court case is too narrow. IHR clinic’s also “do good” by investigating and exposing human rights abuses that would otherwise go unnoticed (like the report by the Stanford and NYU clinics describing the impact of drone strikes in Pakistan) and by pressuring governments to change their abusive policies by filing these reports with numerous international and regional human rights mechanisms.
There are other concerns Posner raises about IHR clinics that are again really just problems he has with international human rights laws and institutions. He argues that IHR clinics have too much scope in selecting “rights” to advocate for, this is because in his view, treaties are too broad and cover too many rights (from migrant rights to women’s rights to disability rights). He also argues that IHR clinics are not actually attempting to enforce the law, perhaps because he does not think that international law is enforceable. But even one of the projects he cites is an example of just that. For example, the best-legal-practices guide for responding to domestic violence in Mexico and Guatemala was aimed at disseminating information about domestic violence laws to various actors responsible for enforcing it.
Even though they were not meant in that spirit, the truth is many of Posner’s critiques of international human rights law are useful to those who believe in the value of the international human rights system. Indeed, people who teach IHR clinics are continually engaged in discussions about the ways in which international human rights laws and norms reflect a Western bias, the ethical problems with advocating for change in the Global South from Global North institutions, and identifying the weaknesses in international human rights enforcement mechanisms for the purpose of strengthening them.
It would be more consistent with his scholarly work for Posner to simply argue that IHR clinics have no place in academic institutions, because he does not think there is value in promoting international human rights law. On the other hand, most people who teach international human rights law clinics and programs see value to promoting international human rights laws and indeed many countries do comply with their international treaty obligations (in many cases explicitly incorporating them into their constitutions) and human rights principles can lead to change even when they are not enforceable in a court. In other words, Posner’s critique of IHR clinics is simply a restatement of his disagreement with the mainstream view that international human rights law matters.
Prof. Kalantry's response originally appeared in the Chronicle of Higher Education. Part I of Prof. Kalantry's response was published in this blog on Dec. 2, 2014.
Tuesday, December 2, 2014
A Response to Posner’s Critique of International Human Rights Programs and Clinics
In a recent article in the Chronicle Review (“The Human-Rights Charade”), Eric A. Posner claims that international human rights law clinics (IHR clinics) and programs have no pedagogical value and do nothing more than engage in “left-wing” political activism. I write this response particularly for readers of the Chronicle Review who are not aware of the landscape of views on human rights in the legal academy. Posner’s thoughts on IHR clinics and programs are nothing more than an extension of his narrow view about international human rights law and also reflect a lack of understanding of what students in IHR clinics and lawyers in the real world do.
Posner thinks that international human rights laws and institutions are at best useless and at worst harmful. Part of why he thinks they are useless is because “many countries completely disregard their treaty obligations” and he believes they are harmful in large part because they restrain states from acting in ways that would maximize their own priorities. For example, he argues that a developing country should not be held accountable for the torture committed by its police, because instead of training police to avoid torturing, it should be allowed to use its limited resources “to build schools or medical clinics.” But people who teach IHR clinics and practice international human rights law are guided by a starkly different vision of international human rights law, a vision in which building schools does not justify toleration of torture.
Posner argues that IHR clinics have no pedagogical value because they fail to give students experience doing “real” legal work such as “draft[ing] contracts, fill[ing] out legal forms, and conduct[ing] interviews of clients.” The reality is IHR clinics do teach nuts and bolts legal skills that are consistent with law schools’ broader pedagogical goals. To use Posner’s example, a report on Cambodian factory workers—as with most human rights reports—would have required students to conduct interviews of multiple stakeholders, conduct extensive international and foreign law research, and undertake legal writing in drafting the report. The Chicago city resolution that domestic violence is a human rights violation (another Posner example) would have given students legislative drafting and lobbying experience and an understanding of how local governments work.
In the real world, lawyers in many areas of practice advocate for legislative change, negotiate with opposing counsel, work with clients and local counsel from other countries and other cultures, work in teams, and achieve legal change through means outside of the courtroom. IHR Clinic projects teach students these very same skills. Some projects of IHR clinics do not involve representation of an individual client in a court case. Instead, they are aimed at achieving change for large groups of people through means other than courts. These tactics require the use of legal skills beyond the traditional set. In the real world, public interest and human rights lawyers achieve social change by mobilizing peoples and communities using media or technology. Filing shadow reports with international treaty bodies, holding thematic hearings at the Inter-American Commission on Human Rights, or drafting reports using the moral persuasion that human rights principles offer can raise the awareness necessary for legal change to occur.
Second, according to Posner, because there is no pedagogical value in IHR clinics, they are just vehicles for academics to engage in political activism using university resources. Posner acknowledges that most people are motivated by their personal viewpoints about social justice and that most clinics reflect the views of people who teach them. But that is not problematic to him as long as clinics are working within his conception of the “legal system.” For example, he notes that people who teach death penalty clinics are likely to be opposed to the death penalty, but because he thinks students in those clinics work within the “legal system” those clinics are teaching law.
The reason Posner thinks that IHR clinics do not operate within a legal system is because he does not think that the international human rights system is a “legal system.” However, I think that international human rights treaties, resolutions, and other documents, the United Nations and its bodies, regional international human rights courts such as the Inter-American Court of Human Rights and the European Court of Human Rights, and the numerous international criminal tribunals do constitute a “legal system.” In IHR clinics, law students who interpret these treaties, apply their provisions to real world situations, submit briefs before international and foreign courts, and make presentations before UN committees are working within a “legal system” even if it does not have the same enforcement powers of a domestic legal system.
Prof. Silantry's response originally appeared in the Chronicle of Higher Education. The remainder of her response will be posted here on December 3, 20014.
Monday, December 1, 2014
The University of Chicago Law School International Human Rights Clinic team with Jessica Lenahan and Rashida Manjoo.
In part two of this post, University of Chicago Human Rights Clinic students Alexandra Tate and Elise Meyer continue their discusion of the recent Lenahan hearing held at the Inter-American Commission on Human Rights. They write:
At the October, 2014 hearing, Ms. Lenahan's team stressed the U.S.’s obligation to protect domestic violence victims and provide a remedy to Ms. Lenahan. Rashida Manjoo discussed the international human right standard on due diligence in responding to violence against women and criticized the lack of U.S. federal protections for domestic violence victims. She stressed that the U.S. must not only enact new legislation to protect victims, but address structural causes, like eliminating gender stereotypes, misogyny, institutional inequalities, and gender-bias, that lead to violence against women. And, in an emotional turn of events, Ms. Lenahan discarded her prepared remarks and made a heartfelt plea to the U.S. to investigate the deaths of her daughters. “The outcome of today could really put my life at peace. And it’s time to get this done…I’m tired and I shouldn’t have to carry this burden,” Ms. Lenahan told the government.
Despite the passion of Ms. Lenahan’s testimony, the U.S. responded by simply recounted statistics regarding funding and new programs for domestic violence victims. Although the statistics were somewhat encouraging, the U.S. claimed to be powerless to provide Ms. Lenahan justice due to the constraints of federalism, a doctrine that grants independent power and responsibilities to state governments. “The Special Litigation Section [of the U.S. Department of Justice] does not have the authority to conduct a civil investigation into discriminatory conduct by law enforcement effecting an individual,” Carmen Lomellin, U.S. Ambassador to the Organization of American States, told the Commission. That power, she contended, is reserved for the State of Colorado. At the closing of the hearing, the Commission reiterated its plan to continue monitoring U.S. compliance with Ms. Lenahan’s case.
The State of Colorado has repeatedly refused to investigate the tragic and unresolved deaths of Ms. Lenahan’s children. If the federal government is purportedly unable to provide justice to Ms. Lenahan and the State of Colorado is unwilling to do so, then where can Ms. Lenahan and other victims of domestic violence turn?
Ultimately, the federal government is responsible for safeguarding the human rights of its people and cannot use the doctrine of federalism to escape this responsibility. As Elizabeth Abi-Mershed, the IACHR Executive Assistant Secretary, pointed out at the hearing, many other federalist countries have overcome these problems—a point that has been addressed in scholarship. As our Professor, Caroline Bettinger-Lopez, underscored at the hearing, federalism should be viewed as an opportunity to creatively collaborate with states on problems, and not as an obstacle to overcome.
The United States delegation at the hearing.