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2010 in Review: IACHR Merits Reports

November 1, 2010 Leave a comment

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.

Read more…

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News Clips – October 25, 2010

October 25, 2010 Leave a comment
  • 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 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]
  • 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]
  • 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]
  • 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]
  • 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 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]
  • 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]
  • 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.
  • 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]
  • 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]
  • 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 – July 18, 2010

July 19, 2010 Leave a comment
  • Argentina legalizes same-sex marriage, becoming the second country in the Western Hemisphere to do so. [Washington Post]
  • The Pre-Trial Chamber I of the ICC has issued a second arrest warrant for Sudan’s President Al Bashir, who is wanted to face charges of genocide against the Fur, Masalit and Zaghawa ethnic groups.  The first warrant was based on charges of war crimes and crimes against humanity. [ICC]
  • ACLU files suit alleging  U.S. “No Fly List” is unconstitutional, on behalf of individuals placed on the list without explanation or recourse, and seeking declaratory and injunctive relief. [ACLU]
  • In its admissibility decision in Babar Ahmar and Other v. United Kingdom, the ECHR requested additional information from the parties and extended interim measures to suspend the extradition of the applicants to U.S., where they could face life imprisonment in supermax prisons. The Court sought further information on the conditions of detention in such prisons, the reach of the U.S. Constitution’s prohibition on cruel and unusual punishment, and the reducibility of the life sentences potentially imposed – in order to determine whether the transfer would constitute a violation of Article 3’s prohibition on inhuman or degrading treatment. [Huffington PostBBCECHR]
  • Jorge Rafael Videla, the former Argentina dictator whose de facto government was in power for most of the Dirty War years, has gone on trial again this month, in connection with the murder of 32 political prisoners in 1976. [BBCLa Nación]  Videla was previously convicted on kidnapping and other charges and later benefited from Argentina’s amnesty law, but began serving a life sentence in 2008 after his pardon was overturned [BBC].
  • IACHR welcomes the release of 7 Cuban political prisoners, which belatedly, partially complies with the Commission’s 2006 merits report in the case of several dozen journalists and human rights activists detained in Cuba, in which it recommended their release. [IACHR]
  • Attorney Lynne Stewart’s sentence has been increased on appeal to 10 years, following her2005 conviction of conspiring to aid terrorists for conveying messages on behalf of her client, who was detained on terrorism-related charges. [Democracy Now!]
  • Human Rights Watch calls on Iran to spare civilians in its military operations  surrounding Kurdish villages in Iraq. [HRW]
  • Human Rights Watch’s new publication Hellish Work denounces Philip Morris’ labor practices and exploitation of migrant workers in Kazakhstan. [NYT]
  • Internal Israeli report finds that the Gaza aid flotilla deaths were justified. [Impunity Watch]
  • President Medved says killer of human rights defender Natalya Estemirova has been identified, as European Commissioner for Human Rights calls on government to bring to justice those responsible. [VOA]
  • Zimbabwe faces continued allegations of human rights abuses in its diamond mines, as Kimberly Process and World Diamond Council approve Zimbabwean diamonds for sale. [NPR, Newsweek]
  • Conditions for Haitians displaced by earthquake are criticized, as nearly 2 million remain homeless.  [truthdig]
  • Last week, thousands commemorated the 15th anniversary of the Srebrenica massacre in Bosnia-Herzegovina. [Impunity Watch]
  • IACHR laments deaths in Uruguay prison fire. [IACHR]
  • South Korean human rights commission to review chemical castration of sex offenders, approved by parliament last month. [Dong-a Ilbo; MSNBC]
  • Egyptian Bedouin rights activist freed following three years of detention under Egypt’s emergency law. [Impunity Watch]
  • Russian Duma expands Russian security services’ powers, amidst protests. [Business Week]

ECHR Upholds Denial of Right to Marry to Same-Sex Couples

July 5, 2010 Leave a comment

On June  24, the European Court of Human Rights issued its decision in Schalk and Kopf v. Austria (App. No. 30141/04), concerning the right of same-sex couples to marry. (See the press release and judgment). Although the Court – for the first time – recognized that same-sex relationships fall within the purview of the Convention’s protection of ‘family life’, the Court held 4 to 3 that the Convention does not require States to allow same-sex couples to marry, and, accordingly, Austria’s denial of the right to marry was within the permissible margin of appreciation granted to States in interpreting the Convention’s protections of private and family life.

Although Austria recently enacted the Registered Parnership Act, which provides legal recognition of same-sex unions, such unions do not enjoy all the legal benefits of marriage, such as the right to adopt children or step-children or elect artificial insemination. Same-sex couples like Schalk and Kopf are still unable to enter into marriage contracts. At the time of their application, Austria offered no legal recognition of committed same-sex relationships and the couple had been continuously denied the right to enter into a marriage contract.

The applicants had alleged violations under Articles 12 (right to marry), 14 (private life) and 8 (family life) of the European Convention, in their 2004 application before the Court.

In arriving at its conclusion that Article 12 does not require that same-sex couples be allowed to wed, the Court relied heavily on current indicators of social and legal acceptance of such a right within Council of Europe Member States and, in the absence of regional consensus, held that States are best situated to “assess and respond to the needs of society” in light of the differing, “deep-rooted social and cultural connotations” attached to marriage in European societies.

Interestingly, in its analysis of Article 14 in conjunction with Article 8, the Court again turned to social acceptance of same-sex couples, this time finding that developing social attitudes towards and legal recognition of such relationships supported their inclusion under Article 8’s protection of family life.  The Court stated, “It is undisputed in the present case that the relationship of a same-sex couple like the applicants’ falls within the notion of ‘private life’ within the meaning of Article 8” (par. 90) and “[i]n view of this evolution [of social and legal acceptance] the Court considers it artificial to maintain that, in contrast to a different-sex couple, a same-sex couple cannot enjoy ‘family life’ for the purposes of Article 8” (par. 94). “Consequently the relationship of the applicants, a cohabitating same-sex couple living in a stable de facto partnership, falls within the notion of ‘family life’, just as the relationship of a different-sex couple in the same situation would” (par. 94).

However, in the absence of legal recognition of same-sex relationship in a majority of Member States, Austria’s law – although not conferring all the benefits of marriage – was sufficient protection for purposes of the Convention because it was consistent with other States’ practices. The Court found that, prior to Austria’s passage of the Registered Partnership Act, common practices among Member States would not have dictated that same-sex partners be legally recognized; accordingly, the majority held that Austria was under no obligation to have enacted the Act prior to 2010.

Although reiterating its understanding that disparate treatment based on sexual orientation requires “particular serious reasons by way of justification”, the Court found the Austrian law to fall within the “wide margin…usually allowed to the State…when it comes to general measures of economic or social strategy” because it had already held that Article 12 did not require that same-sex couples be given the same right to marry as different-sex couples. The Court therefore found it unnecessary to enter into an analysis of whether the Act’s disparate treatment pursued a legitimate aim and was reasonably proportional to the State’s aim.

The Court’s reliance on State practice and its failure to examine the legitimacy and proportionality of the disparate treatment were exactly the weaknesses highlighted by the three dissenting judges (Judges Rozakis, Spielmann and Jebens), who wrote:

8. Having identified a “relevantly similar situation” (paragraph 99), and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” (paragraph 97), the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation (paragraph 80). However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the “existence or non-existence of common ground between the laws of the Contracting States” (paragraph 98) is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter.

9. Today it is widely recognised and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage (see paragraph 4 of this dissent) would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.

10. Consequently, in our view, there has been a violation of Article 14 in conjunction with Article 8 of the Convention.

Finally, the majority stated that it would not determine whether each aspect of Austria’s Registered Partnership Act satisfied the European Convention, because the applicants had not claimed to be directly affected by the provisions restricting parental rights.

Third-party interveners (amici) in the case included the FIDH, International Commission of Jurists, AIRE Centre, and ILGA-Europe.

June is also the month in which the United States celebrates LGBT Pride Month and cities around the world host Pride parades and other festivities to mark the anniversary of the gay community’s political empowerment following New York’s June 1969 Stonewall Riots.

For an understanding of laws granting legal recognition, the right to marry, or other benefits to same-sex couples, see these resources by ILGA-Europe (Europe), Human Rights Campaign (United States), NPR (United States), and Wikipedia (worldwide).

U.S. Supreme Court Upholds Law Criminalizing “Material Support” of Designated Terrorist Organizations, Including Provision of Legal Advice

June 21, 2010 Leave a comment

Today, the U.S. Supreme Court issued its decision in Holder v. Humanitarian Law Project, affirming in part and reversing in part the 9th Circuit Court of Appeals’ decision, issued in 2007. [Washington Post; CCR]  In a 6-3 decision authored by Chief Justice Roberts, the Court upheld 18 U.S.C. § 2339B(a)(1)—which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization”, as designated by the Secretary of State in accordance with Section 219 of the Immigration and Nationality Act—as applied to the plaintiffs: two individuals and six organizations who sought to engage in otherwise lawful, non-violent activities such as “training PKK [Workers’ Party of Kurdistan] members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka”.  Slip Op. at *2.  The two designated terrorist organizations at issue were the PKK (Kurdistan Workers’ Party, which has been engaged in a violent separatist struggle against Turkey) and the LTTE (or, ‘Tamil Tigers’, a violent separatist group in Sri Lanka).

The plaintiffs asserted that the statute’s “prohibition on providing four types of material support—’training,’ ‘expert advice or assistance,’ ‘service,’ and ‘personnel’—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association”.  Id.

As summarized by the Center for Constitutional Rights (one of the organizations representing the plaintiffs):

Chief Justice Roberts wrote for the majority, reversing the Court of Appeals (which had ruled for plaintiffs) on the vagueness claims, and holding that while strict scrutiny apparently applied, even support in the form of intangibles like human rights training freed up resources for other illegal uses, and that combined with the government’s interest in denying blacklisted groups legitimacy was sufficient to trump the First Amendment interests of the plaintiffs.

The preenforcement challenge that became known as Holder v. Humanitarian Law Project (discussed previously on this blog here and here), originated in two separate complaints, filed in 1998 and 2003, the later complaint specifically questioning the PATRIOT Act’s prohibition on “expert advice or assistance”.

The European Court of Human Rights has considered national laws relating to support for terrorist organizations—the PKK in particular—on several occasions, including in relation to criminal charges against the editor and owner of a Turkish publication for “having disseminated propaganda against the indivisibility of the State by publishing an interview with a PKK leader and a declaration made by four terrorist organizations” (Sürek and Özdemir v. Turkey).  See also Chahal v. the United Kingdom, discussing the State’s non-refoulement obligation with regard to an individual suspected of involvement in terrorism.

Other useful resources dealing with human rights in the context of anti-terrorism legislation include the Inter-American Commission on Human Rights’ Report on Terrorism and Human Rights), the UN Special Rapporteur on the promotion and protection of human rights while countering terrorism,  the OSCE’s publication Countering Terrorism, Protecting Human Rights, and the Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights.  Also see Article 19’s report, The Impact of UK Anti-Terror Laws on Freedom of Expression and Human Rights First’s reporting on the effect of the “material support” ban on refugees (here.)

ECHR to Review El-Masri Case against Macedonia; U.S. Supreme Court Will Not Hear Mahrer Arar’s Claim against U.S.

June 15, 2010 Leave a comment

Two high profile cases of extraordinary rendition and torture in the ‘war on terror’ were back in the news today when one advanced procedurally before the European Court of Human Rights and the other reached the end of road before U.S. courts.

The Open Society Justice Initiative announced today that its application on behalf of Khaled El-Masri will be considered by the European Court of Human Rights.  El-Masri, a German citizen, was allegedly subjected to the practice of extraordinary rendition while in Macedonia and spent approximately four months in inhumane conditions in a secret detention center in Afghanistan while in the custody of U.S. agents before being deposited in Albania (read more on El-Masri v. Macedonia).  As summarized by OSJI, the basic allegations presented in the application are the following:

Illegal Detention. The government of Macedonia is responsible for illegally detaining El-Masri for 23 days in the Skopski Merak hotel, without charge and without bringing him before a Judge, in violation of Article 5 ECHR (liberty and security).
Handover to the CIA. Macedonia knew that by handing El-Masri to the CIA he would be flown to Kabul where he would be detained without trial and in conditions that were inhuman, in violation of Article 3 (torture) and Article 5 ECHR (liberty and security).
No investigation. There has never been a proper investigation into how El-Masri was detained in Skopje and then handed over to the CIA, in violation of the requirement to undertake an investigation into violations of Article 3 ECHR (torture).
No remedy. Despite many attempts, El-Masri has been unable to get a court in Macedonia to hear his case, in violation of Article 14 ECHR (right to remedy).
The Right to Establish the Truth. Macedonia is hiding its role in the network of European governments that were secretly helping the CIA program. El-Masri and society as a whole have a right to know the truth.

El-Masri’s petition for writ of certiorari before the U.S. Supreme Court was rejected in 2007, and a 2008 petition filed on his behalf by the ACLU against the United States government is apparently pending before the Inter-American Commission on Human Rights (see more on the ACLU litigation here).

In the case of Canadian citizen Maher Arar, the Center for Constitutional Rights announced today that the U.S. Supreme Court had declined to review the Second Circuit Court of Appeal’s decision which held that, as no civil remedy for damages was available to individuals in Arar’s situation, it would be up to the legislature to devise one before Arar could seek relief.

As the Second Circuit summarized in its 2009 opinion:

We have no trouble affirming the district court’s conclusions that Arar sufficiently alleged personal jurisdiction over the defendants who challenged it, and that Arar lacks standing to seek declaratory relief.  We do not reach issues of qualified immunity or the state secrets privilege.  As to the [Torture Victims Protection Act], we agree with the unanimous position of the panel that Arar insufficiently pleaded that the alleged conduct of United States officials was done under color of law.  We agree with the district court that Arar insufficiently pleaded his claim regarding detention in the United States… Our attention is therefore focused on whether Arar’s claims for detention and torture in Syria can be asserted under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (19730) (“Bivens”).

To decide the Bivens issue, we must determine whether Arar’s claims invoke Bivens in a new context; and, if so, whether an alternative remedial scheme was available to Arar, or whether (in the absence of affirmative action by Congress) “’special factors counsel[] hesitation.’” … This opinion holds that “extraordinary rendition” is a context new to Bivens claims, but avoids any categorical ruling on alternative remedies—because the dominant holding of this opinion is that, in the context of extraordinary rendition, hesitation is warranted by special factors.  We therefore affirm. (…)

Our ruling does not preclude judicial review and oversight in this context.  But 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…

Arar v. Ashcroft et al., 06-4216-cv, 7-10 (2nd Cir. 2009), 7-10 (internal citations omitted).

Arar had been detained in New York before being rendered to Syria, where he endured a year of torture and detention (read more on Arar v. Ashcroft). However, CCR also announced that the Royal Canadian Mounted Police are investigating U.S. and Syrian involvement in Arar’s abduction.

U.S. Publishes Annual Trafficking in Persons Report

June 15, 2010 Leave a comment

U.S. Department of State

Yesterday, the U.S. Department of State put out its annual Trafficking in Persons Report.  This year, for the first time, the report includes a section on the United States; however, it was given the highest rating (complete compliance with the standards set in the U.S. Trafficking Victims Protection Act (TVPA)).  In the words of Secretary Clinton, “This human rights abuse is universal, and no one should claim immunity from its reach or from the responsibility to confront it”.  This statement is an interesting echo of former Secretary of State Condoleezza Rice’s words at the presentation of the 2008 report, when she said, “Trafficking and exploitation plague all nations, and no country, even ours, is immune”.

This year’s report has a new image and content, much like the State Department’s website.  Along with statistics and analysis on human trafficking flows and recommendations to governments, the report also examines how the problem of human trafficking affects distinct groups, such as child soldiers, women, and those in post-disaster situations.  In addition, it takes a look at troubling State practices, the negative implications of using immigration enforcement and voluntary repatriation as responses to trafficking, and pays particular attention to the complicity of State agents in trafficking.

The report examines, and ranks in four tiers, the practices and policies of a large, but select group of States that are determined to be countries of origin, transit or destination in human trafficking rings.  States are ranked based on their efforts to  prevent, punish and eradicate human trafficking, using the following cited criteria:

• enactment of laws prohibiting severe forms of trafficking in persons, as defined by the TVPA, and provision of criminal punishments for trafficking offenses;

• implementation of human trafficking laws through vigorous prosecution of the prevalent forms of trafficking in the country;

• victim protection efforts that include access to services and shelter without unnecessary detention and with legal alternatives to removal to countries in which the victim would face retribution or hardship;

• proactive victim identification measures with systematic procedures to guide law enforcement and other governmental or government-supported front-line responders in the process of victim identification;

• criminal penalties prescribed for human trafficking offenses with a maximum of at least four years’ deprivation of liberty, or a more severe penalty;

• the extent to which a government ensures the safe, humane, and to the extent possible, voluntary repatriation and reintegration of victims;

• government funding and partnerships with NGOs to provide victims with access to primary health care,

counseling, and shelter, allowing them to recount their trafficking experiences to trained social counselors and law enforcement at a pace with minimal pressure;

• governmental measures to prevent human trafficking, including efforts to curb practices identified as contributing factors to human trafficking, including employers’ confiscation of foreign workers’ passports or allowing labor recruiters to charge excessive fees to prospective migrants – factors shown to contribute to forced labor;

and,

• the extent to which a government ensures victims are provided with legal and other assistance and that, consistent with domestic law, proceedings are not prejudicial against victims’ rights, dignity, or psychological well being.

Read the full report, fact sheet, and tier placement map for details on the 177 countries covered.

In the international human rights realm, human trafficking is increasingly being considered an area of potential State responsibility.  For example, the European Court of Human Right’s recent decision in Rantsev v. Cyprus and Russia held both States responsible for violations of article 4 of the European Convention (slavery) for their failure to prevent, protect and punish human trafficking which resulted in the death of a young woman. Read more about this decision on the website of INTERIGHTS, a London-based NGO which submitted a third party intervention (or amicus brief) before the Court.

Framing human trafficking in terms of States’ obligations has been complicated because of a number of factors, including: its generally clandestine nature, the potential involvement of two or more States’ territories, the fact that typically State agents or agencies do not participate in the trafficking, and perceptions that trafficked persons were to be viewed as criminals and/or undocumented migrant workers rather than as victims.

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