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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.

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News Clips – October 15, 2010

October 15, 2010 Leave a comment
  • The loss of leading international human rights scholar Louis Henkin is mourned, while the legal community remembers his long career dedicated to the development of international law and the protection of human rights. [Human Rights First]
  • Moldova has ratified the Rome Statute to become the newest State Party to the International Criminal Court, bringing the total to 114. [UN]
  • Canadian citizen Omar Khadr may have reached a plea agreement with the U.S. government, ending his prosecution by a Military Commission at Guantánamo. [Human Rights First]  Khadr was detained in Afghanistan when he was 15 years old and recently turned 24 while in U.S. custody.  Canadian Prime Minister Stephen Harper has declined to confirm the status of Khadr’s case, but reports indicate that the deal would require Khadr to plead guilty to the war crimes charges against him – including murder, attempted murder, and conspiracy – and serve eight years in prison, the final seven years being served in Canada, contingent on the Canadian government’s agreement. [CBC News]  Khadr’s case has drawn attention because of his young age, but also as one of a handful of cases in which Guantánamo detainees have argued that their home country governments have an obligation to use diplomacy to secure their nationals’ release from Guantánamo.  See INTERIGHTSthird party intervention in Boumediene before the ECHR for relevant jurisprudence and an example of the analysis used in such cases.
  • France has arrested Rwandan rebel leader Callixte Mbarushimana, who is wanted by the ICC on charges that he committed war crimes and crimes against humanity in the Democratic Republic of Congo last year. [ICC; HRW]
  • Uzbekistan has convicted two journalists, Vladimir Berezovskii and Abdumalik Boboev, on defamation and insult charges in connection with articles written or made available by them which were critical of the Uzbek government’s policies; Boboev was ordered to pay a hefty fine. [VOA; HRW]
  • Kenya will no longer prosecute suspected Somali pirates captured by international forces, as it lets expire an agreement entered into last year with the European Union and several national governments. [Impunity Watch]
  • Indonesian President Yudhoyono cancelled his scheduled trip to the Netherlands last week due to a human rights suit filed in Dutch court against him by a Maluku separatist who was allegedly detained and severely beaten for showing a Maluku independence flag during a presidential speech in 2007. [VOA]
  • Federal district court judge Virginia A. Phillips has granted the plaintiffs permanent injunctive relief against the government’s “Don’t Ask, Don’t Tell” policy which had allowed the U.S. military to dismiss soldiers for revealing their homosexuality, upon finding that the law violates the U.S. Constitution’s substantive due process and free speech protections. [C.D. Cal.]  The federal legislature has recently been deliberating repeal of DADT, but Senate Democrats were unable to overcome Republican opposition to the bill. [WSJ]
  • Human Rights Watch calls on the Rwandan government to protect the rights and safety of opposition leaders, in relation to the detention of the leaders of two Rwandan opposition parties. [HRW]
  • The IACHR has released its hearing schedule for 140th Period of Sessions, to begin later this month. [IACHR]  The Commission’s thematic hearings will address issues ranging from camps for the internally displaced in Haiti to prosecutions for crimes against humanity in Argentina, while the hearings on the admissibility and merits of individual cases will include that of Guantánamo detainee Djamel AmezianeLivestreaming and/or recordings will be available for most hearings.
  • A Peruvian court has convicted Vladimiro Montesinos, former aide to ex-President Alberto Fujimori and de facto head of security, as well as members of the Colina death squad, on charges of extrajudicial killing and injury of 29 individuals in separate incidents, including the massacre of Barrios Altos.  The court (Sala Penal Especial de la Corte Suprema de Justicia) found the acts constituted crimes against humanity, as it similarly found in the case of Alberto Fujimori. [CEJIL]  The Barrios Altos case has been reviewed by the Inter-American Court of Human Rights, which found Peru responsible for the deaths and lack of investigation or reparation (merits decision here).
  • Ecuador is receiving negative attention from NGOs and the UN as recent unrest has led the Ecuadorian government to crack down on freedom of the press and of expression. [UN]
  • UN peacekeepers and Democratic Republic of Congo forces have captured a DRC rebel leader accused of orchestrating the mass rape of more than 300 people two months ago. [UN]
  • South Africa’s majority party, the African National Congress, is considering pursuing a bill that would allow the government to imprison journalists for 3 to 25 years for publishing any information that impacts the “national interest”. [Impunity Watch]
  • Following the Nobel Committee’s award of the Nobel Peace Prize to Chinese democracy activist Liu Xiaobo, UN experts and others have called for his release from detention and respect for fundamental rights in China. [UN]
  • The UN has called for an investigation into the October 8th death in custody of a man detained for throwing stones at DRC President Joseph Kabila’s motorcade last month. [UN]
  • ProPublica reports that the U.S. government significantly altered a federal judge’s decision granting a Guántanamo detainee’s habeas petition while reviewing the order for classified information, removing eight pages of the opinion, including the judge’s criticism of the government’s weak case, and changing key details to make the detainee appear more threatening.  The changes were discovered because the court had published the judge’s original opinion online. [Democracy Now!]

Book Review – Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication

September 21, 2010 Leave a comment

Eva Rieter, Preventing Irreparable Harm: Provisional Measures in International Human Rights Adjudication (Intersentia, Antwerp, 2010, xl + 1200 pp., €129.00) ISBN 978-90-5095-931-5 (pb)

This year, Eva Rieter, assistant professor in public international law and international human rights at Radboud University Nijmegen, has authored an extensive volume which is the result of years of research on provisional measures in the international human rights context.

Provisional measures—also termed precautionary measures or interim measures—are those actions which international tribunals direct States to take (or refrain from taking) in order to preserve the object of the litis or to prevent irreparable harm to individuals in situations of imminent risk.  International judicial and quasi-judicial tribunals that issue such measures include those of the regional human rights systems, some U.N. treaty bodies, and the International Court of Justice.

Although several scholars have previously written about the use of provisional measures, such literature has typically focused on individual tribunals[1] or on particular cases[2]. Rieter’s tome appears to be the first comprehensive analysis of the use of provisional measures in the field of international human rights law.

In addition to the dearth of scholarly analysis of provisional measures, this subject has remained elusive to practitioners and academics alike because few tribunals publish their decisions on provisional measures, and those that do may not include reference to supporting international law or jurisprudence. These factors complicate not only the study of precautionary measures, but also the work of those hoping to attain coherence and consistency in—if not progressively expand upon—their use. In addition, the lack of transparency raises questions about the expectations of States vis-à-vis their potential obligations in this area of the law.

Rieter’s book examines the conventional and/or statutory authority to examine requests for provisional measures; the procedural rules governing their authorization and implementation; and the substance of nearly a century of decisions granting, modifying and lifting such measures. Its chapters address, first, the relevant tribunals and the competence of each (Chapters I and II), before turning to the use of provisional measures in specific situations of risk (Chapters III through XII), the kind of protective action required of the State (Chapter XIII) and, lastly, more specific questions of jurisdiction  and enforcement (Chapters XIV through XVIII).

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Human Rights Committee Deplores Executions in Belarus

March 30, 2010 Leave a comment

Following the conclusion of its 98th session, held in New York earlier this month, the Human Rights Committee issued a press release deploring the execution of two individuals whose cases are pending before the Committee and on whose behalf the Committee had issued interim measures. During its session, the Committee had requested clarification from Belarus, which was not forthcoming.  The Committee stated that “executing individuals whose cases are pending before the Committee amounts to a grave breach of the [First] Optional Protocol [to the ICCPR], in particular where a request for interim protection under rule 92 of the Committee’s Rules of Procedure has been issued.”

The Human Rights Committee meets three times annually to consider individual complaints submitted under the Optional Protocol, as well as State’s reports (to be submitted once every four years) on their compliance with the provisions with the ICCPR.  During the 98th session, the Committee considered the sitations in Mexico, Argentina, Uzbekistan and New Zealand based on information provided by NGOs (in the absence of a State report), as well as the State reports submitted by Serbia, Poland, Jordan, Hungary, and Belgium (all available here).  See more about the Human Rights Committee in the UN Treaty Bodies section of this blog.

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