Monday, May 5, 2014

New Research on Human Rights and Public Opinion: Commitments Matter

How should we talk about U.S. human rights obligations?  New research, summarized below by co-editor Mariah McGill, suggests that the American public cares about upholding our nation's formal commitments, and that we should not shy away from invoking treaty obligations as a basis for promoting human rights approaches.  Mariah McGill writes:

I was excited to read a forthcoming article in the Chicago Journal of International Law entitled “The Influence of International Human Rights Agreements on Public Opinion: An Experimental Study” by Adam S. Chilton. In it, Chilton reports on the results of an experiment he conducted testing whether information on the status of international law influences public opinion on domestic human rights issues. As Chilton notes, while many scholars have been skeptical of the impact that human rights agreements can have on domestic human rights issues because of the lack of external enforcement, others have argued that ratification of human rights agreements can sway public support for reform. Such public engagement may, in turn, spur governments to action even without external enforcement.
To test the impact that information about U.S. human rights commitments may have on domestic policy issues, Chilton designed a short survey addressing the use of solitary confinement in the United States, and administered it to almost two thousand people in April 2013. Chilton’s survey provided the user information on the current practice of solitary confinement in U.S. prisons, as well as arguments supporting its continued use. 
Researchers then randomly assigned respondents to one of three treatment groups to test the impact that human rights-based arguments would have on their support for reforming the use of solitary confinement. The first group received no additional information. The second group received a generic statement arguing that solitary confinement must be reformed because it “violates the human rights of prisoners.” The third group received a statement arguing that the practice of solitary confinement must be reformed because it “violates international human rights treaties that the United States has signed.”
 Respondents were then asked to rate on a scale of 1 to 6 how strongly they agreed with reforming the use of solitary confinement in the United States. Respondents who had received the statement linking reform to human rights treaties that the U.S. had signed were slightly more likely to support reform than respondents in the other two groups. Interestingly, the generic human rights appeal, which simply stated that solitary confinement “violates the human rights of prisoners,” did not increase support for reform.
Chilton’s research suggests that linking domestic human rights issues to U.S. international human rights commitments is more likely to increase public support for reform than generic statements about human rights.  Chilton’s experiment addressed an issue relating to civil and political rights which have more public support than economic, social and cultural (ESC) rights in the United States.  Given the ambivalence and outright hostility towards ESC rights in the U.S. it would be interesting to conduct a follow-up experiment examining whether public support for an ESC rights issue increases when linked to U.S. human rights commitments.
As Chilton himself notes, increased public support for human rights reforms while important, does not necessarily translate into changes in public policy. But without public support for reform, it is unlikely that governments will be spurred to action. If Chilton’s research is correct, we as human rights lawyers and advocates should try whenever possible to incorporate the U.S.’s specific treaty obligations into our advocacy and communications efforts, rather than simply relying on more general statements about human rights.

May 5, 2014 | Permalink | Comments (1)

Friday, May 2, 2014

The 10th Anniversary of Abu Ghraib

On the 10th anniversary of the publication of the horrific images of Abu Ghraib, co-editor Deena R. Hurwitz shares her reflections on the ongoing lack of accountability for the abuses that occurred.  A shorter version of this op ed was published by the Richmond Times Dispatch on Thursday May 1.

Deena R. Hurwitz writes:

Ten years ago this week, one of the most notorious incidents of torture was exposed.  The images from Abu Ghraib, the military detention center in Iraq run by the United States, of naked, bloodied, contorted bodies and terrified, humiliated Iraqi faces incited shock and anger towards the United States.  We remember the names — Lyndie England.  Charles Graner.  Infamous “bad apples” in a detention center run amok.  Some – primarily low-level “bad apples” — have been held to account.  Many of the interrogators, their employers, and the officials with command responsibility who either directly authorized or who turned a blind eye to what was happening have not been. 

But how many people know the names of Suhail Al Shimari, Taha Rashid, Salah Al-Ejaili or Asa’ad Al-Zuba’e?  They are four of the many Iraqi civilians who were subjected to electric shocks, sexual assaults, stripped and kept naked, forced to witness the rape of a female prisoner, sensory deprivation, mock executions, stress positions, broken bones, and deprivation of oxygen, food and water, as well as other dehumanizing acts of torture at Abu Ghraib before their eventual release without being charged.  They have sued CACI Premier Technology for its actions at Abu Ghraib, including among other claims, torture, war crimes, sexual assault and battery, intentional infliction of emotional distress, negligent hiring and training, and cruel, inhuman and degrading treatment.

In the decade since the notorious Abu Ghraib torture photos were released, not one private military contractor has been held accountable.

Mr. Al Shimari, Rashid, Al-Ejaili and Al-Zuba’e have a case pending in the federal courts in Virginia, where CACI has its headquarters.  The defendant has tried to have the case dismissed on procedural grounds, arguing that because the acts of torture occurred outside the United States’ official borders, U.S. courts have no power to hear this case.  CACI has also argued that the case challenges U.S. military decisions, suggesting that it was ordered to direct the torture, although it can show no such order and its military co-conspirators were court marshalled for their role in the mistreatment of detainees.  While the trial court accepted the first argument to dismiss the case, the plaintiffs appealed and the Fourth Circuit Court of Appeals held a hearing on their appeal in March.  The merits of their claims of torture and other abuse have yet to be considered.

Few international norms are more firmly established than the prohibition against torture.  This prohibition is recognized as universal and absolute in every major international human rights and international humanitarian law instrument, including treaties ratified by the United States.  For example, the 1949 Geneva Conventions prohibit torture as such and as a war crime “at any time and in any place whatsoever.”  The Convention against Torture (CAT) asserts that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”  The United States is a party to both treaties.

The right to an effective remedy to violations like torture is firmly established by nearly every major human rights treaty, numerous court decisions and scholarly works.  The CAT requires each State party to “ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation . . . .” 

The International Covenant on Civil and Political Rights (ICCPR), also ratified by the United States, prohibits torture and cruel, inhuman and degrading treatment as well.   That treaty requires each State party to establish remedies for any violation of its provisions, including the right to bring a claim and to have that claim heard.  The ICCPR further requires States to ensure that the authorities enforce such remedies when granted.  As the current UN Special Rapporteur on Torture, Professor Juan Méndez has said, “The duty to ensure means that States are obliged to take specific steps to redress the wrong committed by each violation of a right.”

Our international legal obligations to provide an effective remedy include the duty to investigate violations, punish offenders, and provide victims with equal and meaningful access to justice and redress.  At a minimum, victims of torture must be allowed access to justice in U.S. courts, particularly where agents of the United States are implicated as perpetrators. Where there is no alternative forum for a hearing, denying a torture victim access to the courts is a violation of international law. 

Failure to provide victims with meaningful access to the judicial system creates de facto immunity for alleged perpetrators of acts of torture.  Torture victims’ ability to obtain redress helps deter further violations, which policymakers have recognized though legislation such as the 1991 Torture Victim Protection Act

Under the terms of the U.S.-led Coalition Provisional Authority Order 17 in effect in Iraq at the time, contractors like CACI could not be held liable in Iraqi courts.  By its terms, CPA Order No. 17 expressly provides private contractors immunity from the Iraqi legal process, and states that they “shall be subject to the exclusive jurisdiction of their Parent States.” 

The United States is compelled by treaty to make available an effective remedy for victims of torture.  We can only hope that another decade doesn’t pass before the United States accords the victims of Abu Ghraib a measure of justice.


Deena R. Hurwitz is professor of law and director of the International Human Rights Law Clinic at the University of Virginia School of Law.  She and her clinic students, Lauren Schnyer (J.D. ’15) and Jennifer Tian (J.D. ’14), wrote an amicus curiae brief for the Fourth Circuit in Al Shimari, et al. v. CACI PT Inc. with the U.N. Special Rapporteurs on Torture, Juan E. Méndez, Manfred Nowak, Sir Nigel Rodley and Theo van Boven.


May 2, 2014 | Permalink | Comments (0)

Thursday, May 1, 2014

Incarcerating Children with Adults: US Human Rights Violation

Cindy Soohoo sends us this post written by two of her students.  Nell Hirschmann-Levy and Meghan McLoughlin consider the U.S. practice of incacerating children under age 18 with adult populations. 

Children’s Lives at Stake: U.S. Policies of Incarcerating Children in Adult Correctional Facilities


Nell Hirschmann-Levy and Meghan McLoughlin 

Nationally, the U.S. Department of Justice reports that approximately 200,000 youth under the age of 18 are prosecuted as adults in criminal court every year. As a result, thousands of children under 18 are held in adult jails and prisons at any one time, and they are overwhelmingly children of color. Nationwide, African-American youth represent 17 percent of the overall youth population, yet they account for more than 50 percent of the youth sent to adult prisons. In adult jails and prisons, children often share cells with adults and are disproportionately subjected to solitary confinement.  Because these practices are clearly prohibited under international law, the U.S. has become the subject of increasing international scrutiny and criticism.

 Last month, the U.N. Human Rights Committee (“Committee”) criticized a broad range of U.S. laws and policies that treat youth under 18 as adults in the criminal justice system. The Committee’s statements were made in Concluding Observations issued following a two-day review of the U.S.’s compliance with the International Covenant on Civil and Political Rights. The Committee is composed of independent human rights experts from around the world.

In its Concluding Observations, the Committee expressed concern that youth under 18 can be tried in adult courts and incarcerated in adult institutions through various state laws. It emphasized that the U.S. should “ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts.” The Committee went on to stress that “States that automatically exclude 16- and 17-year-olds from juvenile court jurisdictions should be encouraged to change their laws.”

The Committee also took a hard line on the extreme sentences and punishments that are imposed on youth in the adult criminal justice system. In the New York City jail system, over 25% of the adolescent population, 16-18-year-olds, are held in solitary confinement on any given day. The Committee reiterated the international human rights standard, demanding the U.S. abolish solitary confinement for anyone under 18.

The Inter-American Commission on Human Rights (“IACHR”), a regional human rights body for the Americas, has also criticized U.S. policies that conflict with international human rights standards.  Last spring, in response to a request from the International Women’s Human Rights Clinic(“IWHR”) at the City University of New York School of Law and the ACLU of Michigan Juvenile Life Without Parole Initiative, the Commission held a hearing on the human rights of youth incarcerated in adult correctional facilities. Following the hearing, the IACHR expressed deep concern over U.S. practices that result in youth being tried as adults and incarcerated in adult facilities.

Because of the IACHR’s concern about this issue, the Commission’s Special Rapporteur on the Rights of the Child visited New York earlier this month.  New York is one of two states in the country that continue to exclude 16- and 17-year-olds from the juvenile justice system. The Special Rapporteur met with state advocates, local youth activists, and government officials, and visited Rikers Island, the New York City jail.  The Special Rapporteur did not issue any formal findings or conclusions, but following the visit, the IACHR issued a press releaseindicating that it is committed to “continue to closely monitor this situation, until all States treat youth offenders under the juvenile justice system and stop the practice of incarcerating them as adults.”

When young people’s formative years are spent in the adult criminal system, we, as a society, risk destroying our children’s generation by denying them age-appropriate and rehabilitative programs that help them heal. Advocates hope that the recent international scrutiny can support the reform efforts at home as we continue to hold the U.S. accountable.

May 1, 2014 | Permalink | Comments (1)