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Ninth Circuit Holds that Prolonged Detention of Immigrants Pursuing Motions to Reopen Must Be Reviewed by Immigration Judge
On March 7, 2011, the U.S. Court of Appeals for the Ninth Circuit ruled in Diouf v. Napolitano that an immigrant facing long-term detention pending resolution of their motions to reopen immigration proceedings is “entitled to release on bond unless the government establishes that he is a flight risk of a danger to the community.” In so holding, the appellate court reversed the district court’s denial of preliminary injunctive relief to the petitioner, a citizen of Senegal who was granted voluntary departure from the United States in 2003, after overstaying his student visa, but later sought to reopen proceedings and remain in the country as the spouse of an American citizen.
Diouf was represented by the ACLU, ACLU of Southern California, and Stanford Law School Immigrants’ Rights Clinic. History of the litigation is available here.
The petitioner, Mr. Amadou Lamine Diouf, did not leave the country within the timeframe for voluntary departure specified by the immigration judge because he intended to move to reopen proceedings. Before he moved to reopen or for an extension of the period for departure, he was detained by Immigration and Customs Enforcement in 2005. After being detained, Diouf moved the immigration judge to reopen proceedings. This motion was denied and the Board of Immigration Appeals affirmed. Diouf appealed to the Ninth Circuit, which granted a stay of removal pending consideration of his petition for review of the BIA decision.
Diouf’s detention, from March 2005 onward, was subject to review on two occasions, pursuant to federal regulation (8 C.F.R. Section 241.4). In these reviews, Immigration and Customs Enforcement determined that he was a possible flight risk and continued detention was justified.
Diouf then filed a petition for writ of habeas corpus (28 U.S.C. Section 2241) before the U.S. district court, requesting a preliminary injunction for his immediate release on the grounds that his continued detention violated 8 U.S.C. 1226(a) and the Due Process Clause of the Fifth Amendment to the U.S. Constitution – or in the alternative, ordering an immigration judge to hold a hearing requiring the government to justify his detention. In February 2007, the district court required a bond hearing before an immigration judge, who then determined that Diouf did not present a sufficient danger to the community or flight risk and ordered his release.
However, the Ninth Circuit vacated the preliminary injunction because both the district court had assumed that Diouf was held under 8 U.S.C. Section 1226(a) (decision on removal pending), when in fact he was being held under 8 U.S.C. 1231(a)(6) (inadmissible or criminal aliens). Additionally, the Circuit Court “held that Diouf’s detention was authorized by statute because, although it was prolonged, it was not indefinite”. Diouf v. Napolitano at 3158. The Circuit Court remanded for the district court to determine whether aliens held under Section 1231(a)(6) were also entitled to receive bond hearings and be released unless they were proven to be a danger to the community or a flight risk. The district court answered in the negative and, on appeal, the Circuit Court reversed.
Under Supreme Court jurisprudence, notably Zadvydas v. Davis, 533 U.S. 678 (2001), detention of immigrants pending removal may be extended beyond the 90-day limit following the order of removal for a reasonable period of time where removal is foreseeable (e.g., the immigrant’s home country is willing to take him and there is no other legal barrier to his return); such detention may not be indefinite.
This decision will mean that the legality of continued detention will be determined by an immigration judge, rather than by Immigration and Customs Enforcement officials, and the burden will be on the government to prove that the individual is a danger to the community or is likely to flee if released.
The government had argued that immigrants like Diouf who are collaterally attacking their orders of removal through motions to reopen should be treated differently than those challenging a removal order through the ordinary (direct) appeals process. The Ninth Circuit disagreed, finding that the liberty interest of the two groups is “comparable” and both channels serve to ensure that immigrants’ rights are not violated and to properly dispose of their claims.
The court also rejected the government’s contention that the regulations provide adequate safeguards of immigrants’ liberty interests, requiring judicial deference. The court found that deference to the regulations governing review of prolonged detention was not due because:
The DHS regulations governing the 180-day review, however, do raise serious constitutional concerns. When the 180-day review takes place, the alien has been detained for approximately six months and the review, if unfavorable to the alien, authorizes detention for an additional year. At this point, the alien’s continuing detention becomes prolonged. When the period of detention becomes prolonged, “the private interest that will be affected by the official action,” is more substantial; greater procedural safeguards are therefore required. […] Thus, at the 180-day juncture, the DHS regulations are appropriate but not alone sufficient to address the serious constitutional concerns raised by continued detention. The regulations do not afford adequate procedural safeguardsbecause they do not provide for an in-person hearing, they place the burden on the alien rather than the government and they do not provide for a decision by a neutral arbiter such as an immigration judge.
Id. at 3170-71 (internal citations omitted).
In concluding its reasoning, the court stated:
Diouf’s own case illustrates why a hearing before animmigration judge is a basic safeguard for aliens facing prolonged detention under § 1231(a)(6). The government detained Diouf in March 2005. DHS conducted custody reviews under § 241.4 in July 2005 and July 2006. In both instances, DHS determined that Diouf should remain in custody pending removal because his “criminal history and lackof family support” suggested he might flee if released. In February 2007, however, an immigration judge determined that Diouf was not a flight risk and released him on bond. If the district court had not ordered the bond hearing on due process grounds, Diouf might have remained in detention until thisday. To address these concerns, aliens who are denied release in their 180-day reviews must be afforded the opportunity to challenge their continued detention in a hearing before an immigration judge.
Id. at 3172. Diouf’s motion to reopen removal proceedings is still pending review.
Private Prison Industry Played A Heavy Hand in Arizona Immigration Law, NPR Reports
NPR reports that controversial Arizona immigration law S.B. 1070 was drafted and lobbied for in significant part by the private prison industry, through conservative organization the American Legislative Exchange Council, which brings together members of industry and politicians, including Corrections Corporation of America (CCA) and Arizona State Sen. Russell Pearce. [Salt Lake City Weekly] CCA, the country’s largest private prison company, participated in discussions of the idea behind the eventual bill from an early stage, and stood to benefit from future contracts to build or run immigration detention centers under the new law, which – if contested provisions are upheld at the end of an ongoing constitutional challenge – would allow local law enforcement to conduct warrantless arrests of individuals suspected of being undocumented aliens. In addition, CCA and other private prison companies donated heavily to Arizona legislators who supported the bill and CCA reportedly has close ties to Arizona Governor Jan Brewer’s administration. [Salt Lake City Weekly]
CCA, which operates more than half the immigration detention centers in the country, has been criticized for its employment practices and conditions of detention, and has been on the receiving end of numerous civil rights complaints by prisoners and other litigation, including a class action suit filed in 2000 to enjoin CCA’s alleged practice of colluding with telephone companies to increase the cost to inmates to make phone calls, with financial gain going to CCA. [Tucscon Citizen; CCR; Mother Jones].
A constitutional challenge brought by the Federal government against enforcement of the Arizona law is pending before the Ninth Circuit Court of Appeals, which heard oral arguments this week on Arizona’s appeal of the District Court’s injunction against several provisions of the law. The Arizona Republic reported that the judges seemed inclined to rule in favor of Arizona on some provisions, but in the Federal government’s favor on others.
The growth of the private prison industry has come under intense scrutiny in several contexts, including immigration detention and the Iraq war. In response to the Arizona story, the California Correctional Peace Officers Association warned on Election Day yesterday that voters “should be just as worried about the things they don’t see – the unknown forces influencing decisions at all levels of government.”
Relatedly, the Latin America News Dispatch reports that deportations of undocumented immigrants with criminal convictions are at a record high in the United States and have increased 70% under the Obama Administration, due in large part to the Secure Communities program, through which local law enforcement provides biometric data to federal immigration authorities to determine the immigration and criminal backgrounds of individuals arrested by local authorities, with a view to increasing deportation of removable aliens convicted of violent or drug-related offenses. However, the program has been criticized as encouraging racial profiling, distracting local law enforcement from their primary duties, and accelerating deportations – including of thousands of migrants arrested for petty offenses such as traffic violations who have no prior criminal history – without waiting for legislative overhaul of immigration law. [ACLU; NYT] Last week, the National Day Laborer Organizing Network, Center for Constitutional Rights and Kathryn O. Greenberg Immigration Justice Clinic of Cardozo Law sought an injunction in federal court to require the federal immigration agency, ICE, to disclose information on how communities may opt-out of the Secure Communities program. [Florida Independent; CCR] Janet Napolitano, Secretary of the Department of Homeland Security, has stated that opt-out is not available and all local law enforcement agencies must begin participating in the program by 2013.
For more information on immigration policy and immigrant detention in the United States, see the IACHR’s Special Rapporteurship on Migrant Workers and Their Families, the ACLU, Amnesty International, the National Network for Immigrant and Refugee Rights, the Migration Policy Institute, and the International Organization for Migration.
2010 in Review: IACHR Merits Reports
The Inter-American Commission on Human Rights has published two merits reports so far this year, having to do with deportation of non-citizens without consideration for humanitarian factors (against the United States) and impunity in the death of a journalist (against Brazil). In addition to the two merits reports, the Inter-American Commission on Human Rights has published thirty-six favorable admissibility decisions, seven inadmissibility decisions, two friendly settlement reports, and thirty-seven decisions to archive petitions with unresponsive petitioners or in which the grounds of the petition no longer subsist. The seven members of the Commission meet three times per year to review and decide upon admissibility and merits reports prepared by the attorneys of the Executive Secretariat, meet with petitioners, and discuss internal procedures; at two such sessions, the commissioners hold hearings on cases and on issues of concern. The decisions published in 2010 were adopted at the Commission’s 138th Period of Sessions held in March. The Commission can be expected to publish additional reports this year, which it may have adopted at its summer or fall sessions.
WAYNE SMITH, HUGO ARMENDARIZ, ET AL. V. UNITED STATES
In Wayne Smith, Hugo Armendariz, et al v. United States (mentioned previously on this blog here), the Commission concluded that “the United States violated Wayne Smith and Hugo Armendariz’s rights under Articles V [private and family life], VI [family], VII [protection for mothers and children], XVIII [fair trial], and XXVI [due process] of the American Declaration, by failing to provide an individualized balancing test in their removal proceedings”. IACHR, Report No. 81/10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. v. United States, 12 July 2010, par. 66. The petitioners in the case were the Center for Justice and International Law (CEJIL), immigration law firm Gibbs Houston Pauw, and the Center for Global Justice. In 2006, the Commission published its admissibility decisions in the separate petitions presented on behalf of the two men, and decided to consolidate their cases.
News Clips – October 25, 2010
- The Inter-American Commission on Human Rights begins holding hearings today in its 140th 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]
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 2nd 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]
- 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]
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.