News Clips – October 25, 2010

• The Inter-American Commission on Human Rights begins holding hearings today in its 140^th Period of Sessions.  Issues to be discussed today include the Situation of Environmentalists in Mesoamerica, and Discrimination against the Transsexual, Transgender, and Transvestite Population in Brazil.  See the week’s schedule of hearings here.  Webcast of some hearings is available here.

• The role of humanitarian aid in contributing to or furthering humanitarian crises and human rights abuses has been in the news frequently over the past month.  Human Rights Watch last week accused the Ethiopian government of using international aid to suppress dissent.  The New Yorker, The Economist and Huffington Post each published reviews of Linda Polman’s new book, The Crisis Caravan, which highlights the negative consequences of the humanitarian aid industry, painting its growth as a self-serving struggle by NGOs  and armed groups to win funding and contracts on the one hand and media attention and supplies on the other, while often causing harm to those the aid is ostensibly gathered to benefit and making peace and stability harder to attain.

• The IACHR has called on the United States to suspend the execution of Jeffrey Timothy Landrigan, following its grant of precautionary measures in Landrigan’s favor last week.  The Commission subsequently held that the U.S. violated the rights of Landrigan, who is scheduled to be executed tomorrow, when he was sentenced to death by a trial judge rather than a jury using a procedure later found to be unconstitutional, but was never granted a new sentencing hearing.  The Commission requested the immediate suspension of his execution. [IACHR] Amnesty International USA questioned Landrigan’s defense counsel’s failure to present mitigating evidence of his neuropsychological health and raised concerns that the state of Arizona may have obtained the drug used for lethal injections, sodium thiopental, from a non-FDA-approved source. [AI USA]  Landrigan’s application for stay of execution and habeas petition  – on the grounds of possible actual innocence – are pending before the Ninth Circuit Court of Appeals.

• The European Court of Human Rights has found Russia in violation of the European Convention on Human Rights for arbitrarily and discriminatorily denying authorization for gay rights marches in Moscow, in its judgment in Alekseyev v. Russia.

• Canadian Omar Khadr has pleaded guilty to war crimes charges before a Military Commission in Guantánamo, as part of an agreement which will likely limit his prison sentence and provide for his return to Canada, while avoiding the controversy of trying Khadr for crimes he allegedly committed as a juvenile. [AI] Amnesty International urges the U.S. government to comply with its obligations to investigate Khadr’s allegations of torture and abuse while in custody.

• Another mass killing in Ciudad Juárez has claimed the lives of 14 individuals at a teenage boy’s birthday party, following the UN Special Rapporteur on the Independence of Judges and Lawyers’ visit to Mexico and her call for a reformed, independent judiciary capable of handling the increased incidence of violent crime, ensuring access to both defendants and victims, and prosecuting human rights offenders in the ordinary – rather than military – courts. [NYT]

• The African Commission on Human and Peoples’ Rights commemorated the entry into force of the African Charter on Human and Peoples’ Rights on Africa Human Rights Day, October 21, by reflecting on efforts toward peace and security on the continent. [ACHPR]

• Human Rights Watch calls on Turkey to investigate the arbitrary detention and beating of five transgender activists in Ankara by police officers in May 2010, as well as drop the charges against the activists. [HRW]

• The ICC Trial Chamber III has rejected former DRC vice president Jean Pierre Bemba Gombo’s double jeopardy claim, making way for his trial to begin on war crimes and crimes against humanity charges related to the Movement for the Liberation of Congo’s activities in the Central African Republic in 2002 and 2003. [RNW]  The situation in the CAR was referred to the ICC prosecutor in 2005 and the warrant for Bemba’s arrest was issued in 2008.

• Cholera continues to take lives in Haiti, as fears grow of the disease spreading to camps for earthquake survivors. [Washington Post]

• The Associated Press reports that “[a] group of Israeli reservists critical of the military’s treatment of Palestinians has released new photos that appear to show Israeli soldiers abusing Palestinians” [Washington Post] Meanwhile, Human Rights Watch has called attention to torture allegations in Palestinian detention in the West Bank. [HRW]

• Vietnam has attracted criticism for recent, continued arrests of Vietnamese political bloggers and critics. [HRW]

• The United Arab Emirates Federal Supreme Court has ruled that husbands have a right – under the penal code – to “chastise” their wives and children using violence and coercion, provided they leave no physical marks. [HRW]

• The Appeals Chamber of the International Criminal Tribunal for Rwanda has reduced by two years the 25-year sentence imposed on former military chaplain Father Emmanuel Rukundo, as a result of finding Rukundo responsible for aiding and abetting genocide and crimes against humanity rather than the direct commission of those crimes, as the trial chamber had done in its February 2009 judgment. [RNW]

• Last week, the Burundi government denied that police arbitrarily executed 22 rebels, accusing the president of the Association for Protection of Detainees and Human Rights of making false accusations and insisting that the rebels were killed in combat. [RNW]

• Strikes and fuel shortages persist in France as workers protest President Sarkozy’s decision to raise the retirement age from 60 to 62 to balance the social security budget. [Washington Post]

• A new UN report indicates China provided Sudan with arms and ammunition, in violation of the arms embargo.  China is reportedly seeking to block release of the report, which is pending with the Sudan Sanctions Committee, to the Security Council, while also campaigning against U.S.-led efforts to establish an international inquiry into possible war crimes committed in Burma by military leaders. [Washington Post]

• Serbia is urged to prosecute two war crimes suspects, Goran Hadzic and Ratko Mladic, as the European Commission considers Serbia’s application to join the EU. [HRW]

• Jailed Iranian human rights defender Nasrine Sotoudeh enters her eighth week of detention in solitary confinement, where she is reported to be on a hunger strike. [LA Times Blog]

• Cuban journalist and political prisoner, Guillermo Fariñas, has been awarded the Sakharov Prize given by the European Parliament to recognize those who “combat intolerance, fanaticism and oppression”.  Fariñas has been leading a hunger strike in prison to advocate for the release of prisoners in poor health who want to stay in Cuba. [RNW]

• Following a YouTube video depicting the torture of two Papuan men by Indonesian officials, Amnesty International is calling for an investigation of torture allegations against Indonesian security forces in Papua province over the past two years. [AI]

• A Virginia man has pleaded guilty in federal district court to attempted material support of terrorism and communicating threats, in connection with his online threats to South Park creators and advocacy of Somali Al-Qaeda affiliate, Al-Shabaab. [Washington Post]

• The Iraqi Supreme Court has ordered Parliament to meet within two weeks, finding the suspension of the current legislative session – due to legislators’ failure to reach consensus on the formation of the next government – unlawful. [Washington Post]

• WikiLeaks’ latest release of classified documents, the Iraq War Logs, allegedly provides evidence that private contractors fueled violence and chaos in Iraq, U.S. soldiers continued to abuse Iraqi prisoners for years after the Abu Ghraib scandal broke. [NYT; Huffington Post]

• A New York Times article reports on the crumbling state of public housing in the United States, as budget constraints force residents to wait years for necessary repairs. [NYT]

• The French Court of Cassation has ruled that terrorism suspects must have immediate access to a lawyer during interrogation, rejecting the practice of questioning such suspects for up to 72 hours without counsel as incompatible with Article 6 of the European Convention on Human Rightss. [Washington Post]  For more on French court decisions on the detention and interrogation of terrorism suspects, see the International Commission of Jurists’ most recent E-Bulletin on Counter-Terrorism & Human Rights.

• The Ninth Circuit Court of Appeals has temporarily stayed enforcement of the District Court’s injunction against the Don’t Ask, Don’t Tell policy regarding sexual orientation in the U.S. armed forces, in order to consider the federal government’s appeal in Log Cabin Republicans v. USA.

• Twice this month, Iranian authorities have used amputation as punishment by cutting off the hand of two Iranians convicted of theft, raising concerns that the practice is regaining favor. [Huffington Post]

• Thousands protested in Argentina following the death of labor activist Mariano Ferreyra last week during demonstrations for better pay and benefits for railway workers. [Impunity Watch]

• The Telegraph reports, “The US is withholding assistance to Pakistani military units accused of human rights abuses, according to American officials, sparking outrage in a country where CIA drones are blamed for killing hundreds of civilians”. [Telegraph]

• Following Executive authorization of the use of unmanned drones in targeted killings by the CIA, the UN Special Rapporteur on Extrajudicial Executions has called for a study on the ethics and legality of the use of drones [Washington Post]

• 1.3 million votes have been cancelled in Afghanistan’s recent election, following findings of fraud and irregularities. [BBC]  Meanwhile, President Hamid Karzai is taking heat for accepting funding from Iran. [BBC]

• The African Union has reported that the Central African Republic, along with the DRC, Sudan and Uganda, are working together to defeat the Lord’s Resistance Army, in part by creating a joint brigade and classifying the LRA as a terrorist organization. [RNW]

• The UN Special Rapporteur on the Human Rights of Migrants and Working Group on the Use of Mercenariesreport being “deeply concerned over reports of the death of a passenger being deported from the United Kingdom on a British Airways flight to Angola, while in custody of the private security company, G4S”.

• The OSCE Representative on Freedom of the Media has criticized recent limitations on access to information and restrictions on the media in Tajikistan. [Impunity Watch]

• A New York Times editorial questions U.S. government treatment of material witnesses in terrorism cases, following the Supreme Court’s decision to hearAshcroft v. al-Kidd, a suit by an American citizen held in detention and subjected to strict probation-like restrictions for fifteen months, as a material witness. [SCOTUSblog]  Former Attorney General John Ashcroft appealed the Ninth Circuit’s decision holding he was not entitled to absolute immunity against the suit.

• Human rights groups have called on Kenya to arrest Sudanese President Omar al-Bashir, in compliance with the ICC’s outstanding warrants for his arrest on charges of war crimes, crimes against humanity and genocide in Darfur, if he returns to Kenya for a meeting. [VOA]  Article 86 of the Rome Statute, to which Kenya is a State Party, requires States to cooperate with ICC investigations and prosecutions.

• The UN Special Rapporteur on Torture warned last week that Greek detention facilities are dangerously overcrowded as they continue to receive irregular migrants seeking to enter Europe from Turkey, and called on the EU to address the migrant detention issue. [OHCHR]

• Last week, Tibetan students marched in protest of reported government plans to institute a Chinese-only language policy in classrooms. [Impunity Watch]

• In three new reports, Human Rights Watch provides evidence of government control over labor and student unions in Tunisia (The Price of Independence: Silencing Labor and Student Unions in Tunisia), arbitrary detention and ill treatment in Morroco (Stop Looking for Your Son: Illegal Detentions under the Counterterrorism Law), and physical and sexual violence and impunity for such crimes in Western Côte d’Ivoire (Afraid and Forgotten: Lawlessness, Rape and Impunity in Western Côte d’Ivoire). [HRW]

• The European Commissioner for Human Rights calls attention to the plight of institutionalized persons with disabilities in his latest comment.

• A U.S. federal district court judge in Kansas has ruled that Human Rights Watch and a researcher must disclose their notes and sources in the trial of a Rwandan charged with illegally obtaining U.S. citizenship by lying about his participation in the Rwandan genocide. [AP]

• The Association of Southeast Asian Nations (ASEAN) has launched the Human Rights Resources Centre for ASEAN (HRRCA) to support human rights research and education in the region. [State Dept.]

• Mark Lyttle, a mentally disabled U.S. citizen of Puerto Rican descent who was wrongly deported to Mexico is suing the U.S. government after Lyttle, who apparently has a history of mental illness and speaks no Spanish, was deported without court-appointed counsel or an opportunity to present evidence of his citizenship. [Impunity Watch]

News Clips – October 3, 2010

• In Ecuador, a state of emergency remains in place following last week’s uprising of members of the military against President Correa’s government, prompting human rights defenders to call for a quick restoration of full civil liberties. [CEJIL] The Inter-American Commission on Human Rights condemned the attack against Correa. [IACHR]

• Germany today commemorates 20 years of reunification and will use its experience to assist the South Korean government in moving forward with unification of the Korean Peninsula. [New York Times; VOA]

• The UN fact-finding mission into the Gaza flotilla incident has issued its report, concluding that Israel used “unlawful” and “unnecessary” violence in its interception of a flotilla of ships carrying humanitarian aid in May and June of this year.  The report was adopted by the Human Rights Council. [UN; OHCHR]

• The U.S. government has apologized for conducting medical experiments on Guatemalan prisoners, sex workers, psychiatric hospital patients, and soldiers from 1946 to 1948.  The tests purposefully infected approximately 1,500 Guatemalans with syphilis and other sexually transmitted diseases between 1946 and 1948.  U.S. Secretary of State Hillary Clinton expressed outrage and regret, while Guatemalan President Alvaro Colom qualified the experiments as a “crime against humanity” and reserved the right to pursue legal redress. [CERIGUA; Reuters]

• In Venezuela, a riot in the Tocoron prison, which is allegedly run by gang members, has claimed 16 lives. [Impunity Watch]  The Inter-American Commission on Human Rights has previously expressed concern regarding the overcrowding and conditions in Venezuelan prisons, and last week expressed its concern at the discovery of a child prostitution ring operating out of a Paraguayan prison. [IACHR]

• Uganda has charged detained Kenyan human rights defender Al-Amin Kimathi with terrorism and murder due to his role in representing the six Kenyans being prosecuted for the Kampala World Cup bombing. [HRW]

• New signatories to international human rights treaties include the following: Zambia has signed the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; the Central African Republic has signed the optional protocols to the Convention on the Rights of the Child on the involvement of children in armed conflict and on the sale of children, child prostitution and child pornography; Greece has signed the Optional Protocol to the Convention on the Rights of Persons with Disabilities. [UN] Additionally, Tunisia has ratified the UN-backed treaty banning cluster munitions. [HRW]

• Cuba may release more political prisoners if they agree to leave the country. [AP]

• Seven years after Liberia’s civil war, Prince Johnson, a current Liberian senator and former warlord who participated in atrocities committed during the war, has been certified to run for the presidency in next year’s election.  The Truth and Reconciliation Commission of Liberia’s final report recommended that Johnson be banned from holding public office for 30 years and be prosecuted for crimes against humanity (p. 353). [AP]  The Special Court for Sierra Leone is managing the prosecution of former Liberian President Charles Taylor, in The Hague, for atrocities committed by Liberian and rebel forces under his direction in neighboring Sierra Leone, but the International Criminal Court has not opened an investigation into the crimes committed in Liberia during its civil war.

• The UN Human Rights Council has confirmed that the right to water and sanitation is binding on States, as embodied in international treaties  [UN]

• The U.S. Supreme Court begins a new term tomorrow with Justice Elena Kagan becoming the third woman on the court.  As quoted in the Washington Post, Justice Ruth Bader Ginsburg stated, “When the schoolchildren file in and out of the court and they look up and they see three women, then that will seem natural and proper – just how it is.” Critics note that the the ideological divide among the 9 justices may be seen as partisan, in that each Supreme Court justice viewed as conservative was nominated by a Republican president and each justice viewed as liberal in his or her judicial philosophy was appointed by a Democratic president, which had not previously been true.  [Washington Post]  The Court’s docket this term will include cases related to immigration law, freedom of expression, criminal due process and other issues. [SCOTUSblog]  For an interesting commentary on the Roberts Court’s impact on American constitutional law thus far, see Barry Friedman and Dahlia Lithwick’s article on Slate.

• The UN Office of the High Commissioner for Human Rights has issued a report calling on Nepal to establish an independent body to receive and investigate citizen complaints, following its discovery that security forces are suspected of having committed dozens of extrajudicial killings since January of 2008. [UN]

• As a series of teen suicides in the United States are attributed to school bullying on the basis of perceived sexual orientation, activist Dan Savage has initiated the It Gets Better Project on YouTube to offer messages of hope to LGBT teens. [ACLU]

• The trial of former Guantanamo detainee Ahmed Khalfan Ghailani for his alleged participation in the U.S. embassy bombings in Tanzania and Kenya in 1998 is set to begin tomorrow in federal court in New York City, drawing further criticism of the continued use of military commissions and detention abroad of terrorism suspects. [ACLU; HRW]

• Indigenous Chilean prisoners have ended their hunger strike in protest of the terrorism charges levied against them in connection with their anti-poverty protests.  The end of the hunger strike was welcomed by the UN, but Human Rights Watch called on the Chilean government to amend its anti-terrorism laws and limit use of the military court system. [ UN; HRW]

• Human Rights First urged the UNHCR to continue working to ensure equality and dignity in the treatment of LGBTI refugees, as governments and civil society met in Geneva to discuss the issue. [HRF]

• The UN Human Rights Council has established a new Special Rapporteur on the rights to  Peaceful Assembly and Association, a Working Group on Discrimination against Women in Law and Practise, and a Working Group on activities of Private Security Companies. [OHCHR]

• The CIA has begun using armed drones in Afghanistan and Pakistan, in an expansion of the highly controversial use of targeted killings. [Washington Post]

• Bahrain has issued a travel ban against several human rights defenders, preventing them from leaving the country. [HRW]

• Mexican mayors’ lives are at risk in the country’s ongoing battle against drug trafficking. [Washington Post]

• Britain has legally recognized  Druidry, an ancient faith whose followers worship the natural world, as a religion by approving the Druid Network’s application to be registered as a religious charity.  [Huffington Post]

• Liu Xiabobo, a likely contender for the Nobel Peace Prize and Chinese dissident, is serving an 11-year prison sentence for subversion in connection with the publication of Charter 08, a proposal for peaceful democratic reform. [Washington Post]

• One year after a massacre perpetrated by Guinea security forces claimed the lives of more than 150 people, the government has yet to prosecute the suspects, despite the ICC’s opening a preliminary examination. [HRW]

• Cambodian opposition leader Sam Rainsy has been convicted of spreading disinformation and falsifying maps, as the UN Special Rapporteur on Cambodia criticizes “disproportionate use of the law” against the press, activists and political leaders. [OHCHR; VOA]

• The Thai government continues to invoke emergency powers to limit civil liberties, five months after anti-government protests were suppressed. [HRW]

• Human Rights Watch calls for an investigation into a recent rash of police brutality and deaths in custody in Vietnam. [HRW]

• The Office of the High Commission for Human Rights will hear direct testimony from victims of sexual violence in the Democratic Republic of Congo, following the release of a preliminary report on a series of mass rapes occurring in the DRC this summer, and the publication of a comprehensive UN report on human rights and international humanitarian law violations committed in the DRC from 1992 to 2003. [OHCHR]

• In Zimbabwe, violence and arrests of activists have led to the disruption and suspension of community outreach meetings on Zimbabwean constitutional reform. [HRW]

• The Global Migration Group, comprised of various intergovernmental organizations including the International Organization for Migration, urges States to ensure the fundamental rights of migrants in irregular situations. [OHCHR]

• The Al-Jazeera network protested the arrest of two cameramen by NATO forces in Afghanistan. [Washington Post]  The cameramen were released two days later. [Al-Jazeera]

• Following reports that Burmese democracy activist Aung San Suu Kyi was to be allowed to vote in upcoming elections and be freed from house arrest, it remains unclear what action the military government will take. [The Hindu; AP]

• The Obama administration has again invoked the state secrets privilege in an attempt to block a lawsuit challenging the federal government’s actions in the war on terror.  Previously, the Department of Justice successfully invoked the state secrets privilege to win the dismissal of a suit against a Boeing subsidiary for its alleged role in extraordinary rendition.  Now, the Department will invoke the privilege in Anwar al-Aulaqi’s suit challenging the targeted killing program that the government allegedly plans to use against Al-Aulaqi. [AP; The Nation]

U.S. Court Rules Corporations Cannot be Held Civilly Liable for Torture and Other Violations of International Law under ATCA

Last Friday’s Second Circuit ruling in Kiobel v. Royal Dutch Petroleum, if upheld, could be the death knell for litigation seeking to hold corporations accountable for torture and other violations of customary international law under the Alien Tort Claims Act.

The plaintiffs, Nigerian nationals, brought suit against Royal Dutch and Shell Petroleum for aiding and abetting the Nigerian government in extrajudicial executions, torture, arbitrary arrest, and other acts of suppression against those protesting the environmental effects of oil exploration.

In affirming dismissal of the suit, the Second Circuit held that corporations cannot be held liable under the ATCA (or ATS) because customary international law only confers jurisdiction over natural persons. [WSJ]  As in the recent Ninth Circuit ruling in Bowoto v. Chevron, which held that the Nigerian plaintiffs could not recover under the ATCA (because a different federal statute preempted their claims) or the Torture Victims Protection Act against Chevron for the wrongful deaths of protesters, the Second Circuit’s decision ends the plaintiffs’ possibilities for relief.

In Kiobel, the Second Circuit seems to have turned on their head historic justifications for individual criminal (as opposed to State) liability for grave violations of international law.  The majority cites the Nuremberg tribunal as stating: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”, in order to support the majority’s dismissal of the suit based on its finding that international law “has never extended the scope of liability to a corporation”.

However, as the dissenting judge in Kiobel argues, “on many occasions [U.S.] courts have ruled in cases involving corporate defendants [in ATCA suits] in a manner that assumed without discussion that corporations could be liable”.

Read more on the ATCA on this blog (here and here), from the Center for Justice & Accountability, on the Center for Constitutional Rights’ ATCA Q&A sheet, and on Amnesty International USA’s website.

News Clips – September 20, 2010

• In a heartbreaking blow to Afghan hopes for peace, several U.S. soldiers are under investigation for murdering at least three Afghan civilians last year as part of a rogue “kill team” that was allegedly formed when a staff sergeant who had served in Iraq in 2004 joined the platoon stationed in Kandahar province. [Washington Post]

• The French Senate has approved a ban on the use of full-face veils in public, subject to a fine of 150 Euros ; the legislation will now be reviewed by the Constitutional Council [Impunity Watch; BBC]

• France faces widespread criticism for its destruction of Roma settlements and forced repatriation of Roma to other European nations – including from the UN High Commissioner for Human Rights, the Council of Europe’s Commissioner for Human Rights, and the EU Justice Commissioner Viviane Reding. [HRW]

• On Thursday, the U.S. state of Virginia will execute Teresa Lewis, following her conviction for the 2002 deaths of her husband and stepson; she will be the first woman to be executed in the state in 98 years and is reported to have “severe learning difficulties”. [Guardian]

• Polish police have detained exiled Chechen leader Akhmed Zakayev, who was granted asylum in the United Kingdom in 2003, but Polish authorities have not determined whether he will be extradited to Russia, where he is sought on charges of armed revellion, murder and kidnapping. [BBC; RNW]

• Italy and Libya’s joint agreement to intercept would-be migrants at sea has led to several incidents where Libyan patrols have fired upon Italian boats in the mistaken belief that they were carrying migrants. [Impunity Watch; Human Rights Watch]

• Ecuador and Colombia have met to discuss the plight of the approximately 135,000 displaced Colombians living in Ecuador, due to ongoing violence [Impunity Watch; ADN]

• Leading Russian gay rights activist, Nikolai Alekseyev, has been released after being held by Russian authorities for two days while they allegedly pressured him to withdraw a complaint before the European Court of Human Rights. [Radio Free Europe]

• A U.S. citizen has been released from Iranian custody after inadvertently crossing Iranian border from Iraq while hiking; meanwhile, while Amnesty calls attention to 30,000 held in Iran without trial and prominent Iranian human rights activist Shiva Nazar Ahari has been sentenced to six years’ imprisonment. [Guardian; NYT; Amnesty]

• The Philippine National Police will support the installation of a human rights desk in every police station, following torture accusations levied against the police. [Manila Bulletin]

• In Kyrgyzstan, human rights reporter Azimjon Askarov has been sentenced to life imprisonment on charges the Committee to Protect Journalists says are completely unfounded. [CPJ]

• Peruvian President Alan Garcia approved a repeal of recent Legislative Decree 1097, amidst fears that the law would provide amnesty for security forces members accused of human rights violations. [Peruvian Times]  The repeal was viewed favorably by the IACHR, which had criticized the decree. [IACHR]

• Citing “the lack of the right to legitimate defence in Rwanda today”, a French court has rejected Rwanda’s request to extradite Eugene Rwamucyo, a doctor wanted for his alleged involvement in the Rwandan genocide. [RNW]

• Hamas and UN Relief & Works Agency clash over human rights curriculum in schools. [NPR]

• The Observatory for the Protection of Human Rights Defenders has released its annual report, Steadfast in Protest, provides a region-by-region analysis of government  protection (or repression) of the media and civil society (note that the Table of Contents is at the end of the 500-plus page report).  The report is choc-full of individual examples of human rights defenders who were subjected to harassment or prosecution, and instances of dissent which were stifled – particularly during elections – in 2009. [FIDH]

• Human Rights Watch calls for the establishment of an international Commission of Inquiry for Burma, to investigate past abuses by the military and armed groups.  [HRW]

• The U.S. Senate is poised to vote on legislation, which has been approved by the House of Representatives, and which would repeal the military’s “Don’t Ask, Don’t Tell” policy towards gay and lesbian members of the military. [ACLU]

• Kashmiri separatists protest curfew laws and Indian occupation in bloody battles with Indian troops, in which at least three protesters have lost their lives, while Human Rights Watch calls for the repeal of the Armed Forces Special Powers Act, which protects members of the Indian military from prosecution and grants broad powers to use force and conduct warrantless arrests. [BBC; HRW]

• UN Special Rapporteur on the right to adequate housing warns of the high rate of forced evictions in Kazakhstan. [OHCHR]

• The IACHR has presented a case to the Inter-American Court involving Chilean courts’ denial of parental custody rights to a lesbian mother because of her sexual orientation.  Karen Atala’s petition is the first to be decided by the Commission relating to discrimination on the basis of sexual orientation. [IACHR]

• UN expert calls on Sudanese authorities to investigate the September 2^nd killing of dozens of civilians in North Darfur. [OHCHR]

• A Reprieve investigator reports that the FBI has been deeply involved in the questioning and detention of individuals connected to the World Cup bombings in Kampala this year, the investigation of which has included the arbitrary detention of two Kenyan human rights defenders arrested in Uganda last week.  They had been working on behalf of three Kenyans subjected to extraordinary rendition and charged in Uganda for their alleged role in the Kampala World Cup bombings. [Huffington Post]

• UN Deputy High Commission for Human Rights calls for greater protection of civilians against attacks in Somalia, following her visit to the country.

• Organizations call for the immediate release of 19-year-old blogger being held incommunicado in Syria for nine months now.  [AFP; HRW]

• Attacks against journalists threaten lives and freedom of expression in Mexico. [Impunity Watch]

• The Costa Rican Supreme Court has ruled that the high crime rate in the country cannot justify arbitrary police checkpoints on public roads, which may be established only when there is substantiated evidence or actual notice of a crime having been committed. [CEJIL]

• 18 protesters were injured, and one killed, in a confrontation between Peruvian police and protesters opposed to a dam and agricultural irrigation system which residents of Espinar fear would leave them without water. [Reuters; AlertNet]

• In Thailand, planning for anti-government protests is underway as the fourth anniversary of the military coup approaches. [Democracy Now]

• The UN Representative on the Human Rights of Internally Displaced Persons calls for increased efforts to improve the lives of the internally displaced in Armenia.

News Clips – through Sept. 14, 2010

Economic, Social and Cultural Rights

• Syria welcomes its first visit from a UN special rapporteur, the Special Rapporteur on the right to food, in a showing of increased participation with the UN Human Rights Council’s monitoring mechanisms, including its upcoming Universal Periodic Review. [The National; OHCHR] The Special Rapporteur estimates that 2 to 3 million people face food insecurity in Syria.

• The UN General Assembly has adopted Resolution A/RES/64/292, which declares that access to safe and clean drinking water and sanitation is a human right essential to the full enjoyment of life and all other rights.  Bolivia introduced the text and 122 of the 192 Member States voted in favor, while 41 – including the United States – abstained from voting. [UN]

• The UN General Assembly recognizes the right to education in emergency situations in Resolution 64/290.

Conflict and Humanitarian Emergencies

• The UN General Assembly has urged greater support for emergency relief and reconstruction in Pakistan, following widespread flooding which continue to affect up to 20 million people.  [UN; BBC]

• In New York and across the United States, victims of the  9/11 attacks are honored as President Obama advocates tolerance and President Karzai warns that continued NATO involvement in Afghanistan endangers innocent civilians. [New York Times; AP]  Ongoing violence in Afghanistan threatens the stability of the upcoming parliamentary election. [HRW]

• Human Rights Watch calls attention to massive, ongoing attacks and abductions by the Lord’s Resistance Army in CAR and DRC. [HRW]  The UN recently prepared a report on the human rights violations committed in DRC between 1993 and 2003, to be released in October. [UN]

• The ICJ has issued an advisory opinion finding that Kosovo’s declaration of independence did not violate international law, a decision requested and acknowledged by the UN General Assembly. [UN]

Prosecutions and Impunity

• Although reports of impunity and discrimination continue, the conviction of a Honduran police officer in the stabbing of a transgender sex worker is seen as an important victory. [HRW]

• Human Rights Watch calls on Uganda to investigate and prosecute security officers’ use of lethal force during the September 2009 Kampala riots. To date, no officer has been successfully prosecuted for the dozens of deaths caused by security forces. [HRW]

• In the Philippines, 19 defendants are facing trial for the 2009 Maguindanao massacre of 57 people. [HRW]

• The Extraordinary Chamber in the Court of Cambodia has issued its first conviction, sentencing  Kaing Guek Eav to 35 years’ imprisonment for war crimes and crimes against humanity for his role in running an infamous detention camp under the Khmer Rouge in the late 1970s. [UN]

• Human Rights Watch has issued a new report, Dignity on Trial, urging overhaul of India’s treatment of victims in rape investigations.

• The complexities of the use of private military contractors, or mercenaries, are evident in the UN independent experts’ concern regarding the execution of four mercenaries in Equatorial Guinea following their trial – by a military tribunal – for their participation in an armed attack against the government in 2009. [OHCHR]
  

  Photo credit: Mike Baird

• On September 10, the Ninth Circuit issued its judgment on plaintiffs’ appeal in Bowoto v.  Chevron, affirming the jury verdict in favor of Chevron and the district court’s pre-trial rulings that the Alien Tort Statute claims were preempted by the Death on the High Seas Act and that corporations could not be held liable under the Torture Victims Protection Act- in connection the 1998 deaths and torture of Nigerians protesting the environmental damage caused by Chevron’s drilling of the Nigerian coast.

• CEJIL questions the Colombian government’s commitment to the investigation of the deaths and disappearances following security forces’ seizure of the Palace of Justice from guerrillas in 1985, in light of the recent firing of the prosecutor in charge of the investigation. [CEJIL]

• ICTR sentences Rwandan official to 25 years’ imprisonment for a 1994 massacre.  While the tribunal convicted the former provincial sub-prefect, Dominique Ntawukulilyayo, of genocide, it acquitted him of complicity and incitement to commit genocide, for his role in the April 23, 1994 attack by soldiers in which thousands of Tutsis died. [UN]

Photo credit: Michael Galkovsky

Treaty and Tribunal Developments

• At the third session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities, participants advocate greater enforcement of the convention’s protections at local levels, while top UN official urges wider ratification. [UN]

• Seychelles and Saint Lucia have ratified the Rome Statute, bringing the number of States Parties to the International Criminal Court to 113. [ICC]

• The UN Security Council and General Assembly have elected two new judges to the bench of the International Court of Justice -American citizen Joan E. Donoghue and Chinese citizen Xue Hanqin – to replace judges Thomas Buergenthal and Shi Jiuyong, who resigned this year. [ICJ]  Donoghue is currently Principal Deputy Legal Adviser at the U.S. Department of State, while Xue is a diplomat. [UN; Radio Netherlands]

• The Inter-American Commission on Human Rights has designated Jorge Taiana as its Special Representative for the Strengthening of the Inter-American Commission, with the central purpose of resolving the chronic lack of resources necessary to carry out its mandate. [IACHR]

• On August 1, 2010, the Convention on Cluster Munitions took effect, prohibiting the use of cluster bombs in the 40 State Parties. [UN; BBC]

Universal Periodic Review

• The United States has submitted its first national report to the UN Human Rights Council as part of the Universal Periodic Review process. [Human Rights First] See the UN and stakeholders’ reports on the U.S. here.

Security and the Rule of Law

• The Inter-American Commission on Human Rights has strongly condemned the forced transfer of Guantanamo Detainee Abdul Aziz Naji to Algeria, in spite of the precautionary measures granted in favor of all Guantanamo detainees in 2002, as a violation of the principle of non-refoulement. [IACHR]

• The ACLU and CCR have filed a federal lawsuit challenging presidential authorization of targeted killings of U.S. citizens outside of conflict zones, without requiring that the killing be necessary in the face of an imminent threat, or providing for due process of law or judicial oversight.  The ACLU and CCR sought to represent Anwar al-Aulaqi, a U.S. citizen, because it learned that he was named on the Specially Designated Nationals List of suspected terrorists whose assets have been frozen by the Office of Foreign Assets Control (OFAC) of the U.S. Department of Treasury, as well as on a “kill list” list of individuals to be targeted for killing by the U.S. government.  OFAC requires that attorneys must first obtain a license from the government in order to provide legal services to individuals named on its Specially Designated Nationals List.  After OFAC initially failed to respond to their request for a license to represent Mr. Aulaqi, the ACLU and CCR filed a second lawsuit challenging the license requirement for attorneys. [CCR; ACLU]  The ACLU has also filed a FOIA request seeking documentation related to the legal basis for the use of predator drones to conduct targeted killings. [ACLU]

• A recent Peruvian Legislative Decree No. 1097 would appear to essentially grant amnesty to those responsible for crimes against humanity committed before November 9, 2003 and has drawn intense criticism.  [IACHR; CEJIL]  The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism completed a week-long official visit to Peru on September 8. [OHCHR]  Among other observations, the Special Rapporteur called attention to the broad definition of terrorism-related crimes in Peruvian law and welcomed the government’s report that a new counter-terrorism law that would take into account international standards has been drafted. [OHCHR]

• In July, the U.S. military transferred roughly 1,500 detainees to Iraqi custody by handing over control of Camp Cropper to the Iraqi government. Those transferred included former representative of the Hussein government, Tariq Aziz, whose son expressed concerns that his father would die in Iraqi custody. [Washington Post] Approximately 200 individuals deemed “too dangerous” to hand over remained in the custody of the U.S. military.  Four of those prisoners escaped this week from the Baghdad detention center where they were being held. [Washington Post]

Dissent and Freedom of Expression

• Swaziland Prime Minister proposes severe corporal punishment of dissidents and foreign protesters, following arrest of 50 protesters. [Impunity Watch]

• NGOs call attention to the arbitrary detention and prosecution of human rights defenders around the world, in Angola, Morocco, Israel, Colombia, China, DRC, Kyrgyzstan, Cambodia, Russia,  [HRW; Human Rights First]

• Bahrain suspends human rights NGO’s board, replacing board members with State representative, in run-up to October elections, drawing criticism from Amnesty International. [AFP]

Equal Rights and Discrimination

• Mexico’s Supreme Court has recognized that same-sex couples in Mexico City have the right to adopt children, rejecting the federal government’s constitutional challenge to last year’s legislation allowing gay marriage. [BBC]

• U.S. immigration policy continues to receive criticism on several fronts, as the Inter-American Commission on Human Rights issues its merits report in Smith and Armendariz v. United States, holding that the deportation of two foreign nationals without consideration of their family ties in the U.S. violated their rights to respect for family life and due process; the ACLU files suit challenging the lack of adequate procedures for dealing with people with mental disabilities in detention and removal proceedings; Human Rights Watch submits an amicus curiae brief before the Board of Immigration Appeals (BIA) alleging that current U.S. practices with regard to individuals with mental disabilities violate international standards; a new report details sexual abuse and harassment in immigration detention; the Ninth Circuit reverses and remands a BIA decision for appropriate consideration of whether  “women in Guatemala” may constitute a particular social group for purposes of asylum; documents obtained through FOIA litigation allegedly demonstrate that immigration officers use the ‘Secure  Communities’ immigration enforcement program to detain and deport non-criminals or petty criminals using racial profiling, rather than as a highly limited mechanism to target the worst criminals for deportation [CCR]; and the Third Circuit strikes down a city ordinance punishing landlords nad employers for renting to or hiring “illegal aliens” [ACLU].

• A federal judge granted the federal government’s request for preliminary injunction against some provisions of Arizona’s immigration law, SB 1070, temporarily prohibiting enforcement of the requirement that police check immigration status of individuals they stop, the provision allowing, warrantless arrests of suspected unlawful immigrants, and the requirement that immigrants carry registration papers. [Washington Post]

• New U.S.  legislation ends marked inequality in drug sentencing for powder cocaine and crack cocaine, which was a significant factor in racial disparities in prison populations because of the mandatory five-year minimum sentence previously required for possession of 5 grams of crack cocaine (versus 500 grams of powder cocaine) and the fact that those prosecuted for crack offenses were predominantly African American. [HRW]  The Fair Sentencing Act of 2010 increases the amount of crack cocaine required to trigger the mandatory minimum sentence, eliminates the mandatory minimum for simple possession, and requires the U.S. Sentencing Commission to adopt new guidelines to take into account aggravating and mitigating circumstances in cases of drug trafficking.

Ninth Circuit Dismisses Rendition Lawsuit against Boeing Subsidiary, Granting Government’s Invocation of State Secrets Privilege

On September 8, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit dismissed a civil suit filed under the Alien Tort Claims Act by five extraordinary rendition victims against a Boeing subsidiary, Jeppesen DataPlan, Inc. for its role in their rendition.  [Amnesty International USA ; ACLU]  The federal government intervened in the suit, arguing that any divulgence of information relating to Jeppesen’s work for the CIA would make public privileged information.  The district court granted the government’s motion to dismiss.  On appeal, a three-judge panel of the Ninth Circuit Court of Appeals reversed and remanded.  An eleven-judge panel of the Ninth Circuit took up the case en banc, the majority then “reluctantly” concluding that the state secrets privilege applied and, on the facts of the case, required dismissal.

The five plaintiffs are non-U.S. citizens who were detained in Sweden, Pakistan, Gambia and Jordan before being rendered to Egypt, Morocco, and Afghanistan, where they allegedly suffered torture and inhumane conditions of detention.  Several allege that they were sentenced to lengthy prison terms after giving false confessions under severe torture. Two of the plaintiffs, Binyam Mohamed and Bisher al-Rawi, were eventually transferred to Guantanamo, where they spent years in detention.

Unlike the district court, the circuit court relied on the privilege established in Reynolds (state secrets evidentiary privilege) rather than on the Totten bar (barring adjudication where the very subject of the litigation is a state secret).  The state secrets privilege is intended to protect information when “strictly necessary to prevent injury to national security”. See, e.g., Mohamed v. Jeppesen Dataplan, Case 08-15693, Slip Op. at 13538 (9th Cir. Sept. 8, 2010), quoting Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983).  The effect of a sustained claim of the state secrets privilege is the excision of the protected evidence from the litigation.  In Mohamed, the Ninth Circuit held that dismissal was required because the privileged evidence could not be separated from nonprivileged information, creating an “unacceptable risk of disclosing state secrets” were the case to continue. Id. at 13540 et seq.  In spite of the hundreds of pages of nonprivileged documents offered into evidence by the plaintiffs (listed in the dissent’s appendix), the majority concluded that Jeppesen’s response to such evidence would require disclosure of privileged information. Id. at 13551-52.  The majority also took note – on two occasions – that the Obama administration had revised the federal standards for invocation of the state secrets privilege and certified to the court its compliance with those standards in this case. Id. at 13528-29, 13552-53.  [See Michael Isikoff’s critical Newsweek article on that issue here].

With regard to the plaintiffs’ possibilities for relief, the majority wrote:

Our holding today is not intended to foreclose — or to prejudge — possible nonjudicial relief, should it be warranted for any of the plaintiffs. […].

First, that the judicial branch may have deferred to the executive branch’s claim of privilege in the interest of national security does not preclude the government from honoring the fundamental principles of justice. The government, having access to the secret information, can determine whether plaintiffs’ claims have merit and whether misjudgments or mistakes were made that violated plaintiffs’ human rights. Should that be the case, the government may be able to find ways to remedy such alleged harms while still maintaining the secrecy national security demands. For instance, the government made reparations to Japanese Latin Americans abducted from Latin America for internment in the United States during World War II. See Mochizuki v. United States, 43 Fed. Cl. 97 (1999).

Second, Congress has the authority to investigate alleged wrongdoing and restrain excesses by the executive branch. “ […]

Third, Congress also has the power to enact private bills. See Nixon v. Fitzgerald, 457 U.S. 731, 762 n.5 (1982) (Burger, C.J., concurring) (“For uncompensated injuries Congress may in its discretion provide separate nonjudicial remedies such as private bills.”) […]  When national security interests deny alleged victims of wrongful governmental action meaningful access to a judicial forum, private bills may be an appropriate alternative remedy.

Fourth, Congress has the authority to enact remedial legislation authorizing appropriate causes of action and procedures to address claims like those presented here. When the state secrets doctrine “compels the subordination of appellants’ interest in the pursuit of their claims to the executive’s duty to preserve our national security, this means that remedies for . . . violations that cannot be proven under existing legal standards, if there are to be such remedies, must be provided by Congress. That is where the government’s power to remedy wrongs is ultimately reposed.” Halkin v. Helms, 690 F.2d at 1001 (footnote omitted).

Id. at 13553-56 (internal citations omitted).

The Ninth Circuit’s decision is an interesting echo of the Second Circuit’s dismissal of Maher Arar’s suit against U.S. government officials alleging wrongful detention and torture in connection with his extraordinary rendition to Syria.  While the Second Circuit did not reach the questions of qualified immunity or the state secrets privilege, the court placed primary importance on non-judicial remedies in the resolution of such cases, explaining that “if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress”.  The U.S. Supreme Court recently declined review of the Second Circuit’s dismissal.

In their sharply worded opinion, the five dissenting judges argued that the majority’s holding was procedurally flawed, in that the plaintiffs’ allegations were sufficient to survive dismissal and the state secrets privilege should not have been used to prevent plaintiffs from proving (through non-secret evidence) the veracity of allegations “that any reasonable person would agree to be gross violations of the norms of international law, remediable under the Alien Tort Statute.”  Id.  at 13559. Rather, review of the privilege’s application should have taken place with regard to specific pieces of evidence, once the complaint had been answered and discovery had begun (not, as in this case, immediately after the complaint was filed), so as to avoid that the privilege trump due process of law. Id. at 13559-61.  The dissent’s – highly compelling – argument is that the majority allowed the state secrets privilege to apply to facts, rather than to evidence, prohibiting the plaintiffs from alleging certain conduct and knowledge by Jeppesen  rather than barring the introduction of pieces of evidence that could jeopardize national security (without having regard to whether privileged information could also support their allegations). Id. at 13568.  The dissent concludes by arguing that the alternative remedies identified by the majority fly in the face of the notion of judicial review and the concept of checks and balances.

The tie-breaking concurring opinion argued in favor of applying the Totten bar to dismiss.

U.S. Department of Justice Files Constitutional Challenge against Arizona Immigration Law

The U.S. Department of Justice announced last week that it had filed a constitutional challenge to Arizona’s new immigration law, S.B. 1070 (discussed earlier on this blog here and here), seeking declaratory and injunctive relief against its enforcement.  The suit was filed on behalf of the Department of Justice, the Department of Homeland Security, and the Department of State, which each have responsibilities related to immigration enforcement.

As summarized in the press release, the complaint alleges that the Arizona law “unconstitutionally interferes with the federal government’s authority to set and enforce immigration policy” and “will place significant burdens on federal agencies, diverting their resources away from high-priority targets, such as aliens implicated in terrorism, drug smuggling, and gang activity, and those with criminal records”.  Additionally, the government cited the potential for harassment of lawful immigrants and visitors, and pointed to the law enforcement community’s argument that the Arizona law undermines its efforts to gain the trust and cooperation of immigrant communities.

The Department of Justice also filed a motion for preliminary injunctive relief, seeking to suspend enforcement of the law while the suit is resolved.

As mentioned earlier on this blog, U.S.-based NGOs have also filed a constitutional challenge to the Arizona law and United Nations experts have expressed concerns about its compatibility with international human rights standards (here and here).  Last week, Human Rights Watch published its report Tough, Fair and Practical that urges federal immigration reform and recommends specific changes to ensure that “immigrant crime victims a chance to seek justice, protect workers, respect the private and family life of longtime residents, and provide fair treatment for immigrants who come before the courts”.  [HRW]

Attorney General Eric Holder also stated that, should the law survive the constitutional challenge and come into effect, the Federal government may again take legal action if it believes racial profiling is taking place. [LA Times]