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On November 25, 2013 the Spanish Congressional committee on home affairs was due to adopt a public security bill, and will then be debated and voted on in the next few days. The proposed law would allow authorities to fine people who hold spontaneous protests or show lack of respect for law enforcement officers. The purpose of this law is to protect the safety of individuals from disruptive protests. In 2013, the Interior Ministry reported 323 disturbances out of 33,124 demonstrations; and in January through March 2014 disturbances were reported in 62 out of 10,837 demonstrations.

The law is expands on a current public security law and would additionally allow for administrative sanctions for minor to very serious infractions; the penalties would range from $125 to $752,972. This administrative process would bypass the courts without a guarantee of judicial relief.

This law would suppress the basic rights of freedom of speech and belief, which is stated in the preamble of The Universal Declaration of Human Rights. In order to limit the restrictions on the basic rights of freedom on speech, “the intensity of state interference must be necessary to attain a legitimate purpose, and any restriction must be proportionate.”

Even though the reports of disturbances are minor in proportion to the number of demonstrations occurring in Span recently; I believe this is a violation of the right to free speech. Giving the authorities the ability to fine citizens for peaceful spontaneous demonstrations is not proportional to the legitimate government interest. The protection of citizens from a disruption in a demonstration is not a legitimate reason to limit the guarantee of judicial relief. However, if a disruption where to erupt at a spontaneous demonstration that is not peaceful, then the law is a state interference that is necessary to attain a legitimate purpose.

Do you think this law would satisfy the intensity of the state’s interference necessary to attain a legitimate purpose? Do you think this law will protect citizens from disruptions in spontaneous disruptions?

Source: Human Rights Watch; Universal Declaration of Human Rights

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When Russia began intervening with Ukraine’s control over Crimea, it cited the need to protect nationalists abroad who were being underrepresented. Today, the Russian-occupied Crimea is not embracing Russia’s intervention as Russia claimed it would.

Crimean residents who wish to remain Ukrainian citizens are facing serious human rights violations. Currently, citizens are given one month to decide whether to become Russian citizens. The alternative is to be treated as a foreigner in your own country. Citizens wishing to retain their Ukrainian citizenship are facing barriers that include obtaining residence status. Additionally, as Ukrainian nationals, they will be prevented from holding government posts and will not have the choice if required to join the army.

The United Nations recognizes Crimea as a part of Ukraine. In fact, “under the 1949 Geneva Conventions, territory is considered “occupied” when it comes under the control or authority of foreign armed forces, whether partially or entirely, without the consent of the domestic government. Russia’s presence and effective control over Crimea, in the face of Ukrainian opposition and objection, constitutes a belligerent occupation”.

Even if Russia’s occupation was not considered as belligerent, “an occupying power is forbidden from seeking to make a permanent change to the demographics of the occupied territory and from compelling the inhabitants of an occupied territory to swear allegiance to the occupying power or to serve in its armed or auxiliary forces, as well as from engaging in any “pressure or propaganda which aims at securing voluntary enlistment.”

Moreover, “the occupying power has to maintain the laws in force in the territory at the time of occupation and cannot modify, suspend, or replace them with its own legislation unless it is absolutely prevented from doing so.”

The situation in Crimea is far from being resolved. How should the international community respond?

Sources: Human Rights Watch 

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Imagine being caged to your bed, tied down and deprived of the most basic human rights of adequate care and education. BBC reported this devastating practice at the Children Care Center of Lechaina, in Southern Greece for children suffering with disabilities.

In March 2011, the Greek Ombudsman’s Office of the national human rights institute published a report on the center stating the low numbers of doctors and nurses, systemic education, and horrific practices of tying children and adults to their beds to reduce self-harm. The institute was also reported to be using wooden cage beds during staff shortages. In addition, those with chronic diseases and disabilities in the center were not receiving proper medical care and many of the children were not even receiving an education.

Due to the lack of institutions in Greece, most of the residents will live in the care center until they become adults or even all of their lives, stripping them of their dignity and rights. These children deserve to be placed in community care where they will receive an education or with foster families who can give them the attention and love they need.

This practice in Greece is similar to that of the abusive practices reported in Russian state orphanages where staff members were confining children with disabilities to their cribs for days and even weeks.

After the Ombudsman’s report was released, along with the European Disability Forum, Humans Rights Watch reported these abusive conditions in an open letter to the minister of health and in submissions to the U.N. Rights Bodies. In 2012, the Untied Nations Committee on the Rights of the Child voiced its extreme concern for the practices at the center and encouraged Greece to stop subjecting children with disabilities to these inhumane practices.

While these problems are inextricably linked to limited financial resources in Greece and a public sector hiring freeze from the state’s lenders, the European Union, and the International Monetary Fund, these practices should not be tolerated by the government. Three years after the Ombudson’s report came out, conditions at the center have barely improved. Investments need to be made to figure out alternatives to caging the residents who need proper care.

Greece should be encouraging improvement of the living conditions in the Lechaina center as well as its other institutions by ending the use of caged beds and tying patients to their beds. These practices are inhumane and are depriving children of receiving an education and the care that they need.

How do you think this problem should be resolved? Why do you think the government of Greece has not intervened in this crisis and taken more action to ensure humane treatment of these children?

Source: Human Rights Watch 

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Earlier this month, Gambia passed one of the more superfluous anti-gay laws to date. The newest addition to the already homophobic criminal code is the offence of “aggravated homosexuality”—a crime carrying a punishment up to life in prison. Above its egregiously homophobic nature, the law is inexplicably vague. According to the criminal code, “a person commits the offence of aggravated homosexuality where the… offender is a person living with HIV Aids, or the offender is a serial offender.”

This circular definition leaves many scratching their head. In essence, a person commits aggravated homosexuality by being a serial offender—which begs the question. Remember in elementary school when your teacher explained that you couldn’t use a word in its definition? Apparently that rule doesn’t apply in the Gambia criminal code. Additionally under section (b) of the code, would being diagnosed with HIV equate to an automatic conviction? If read literally, the answer is yes because the statute does not require the offender to engage in homosexual activity. Such defectively written legislature only bolsters the palpable intent behind the statute. Usually legislators have the decency to hide behind clever wording, but that is not the case in Gambia. Gambia’s candidness would usually be commendable if it was not ridden with such disdain. Additionally, consensual, private sexual activity between same-sex adults is already illegal, so this new law only adds insult to injury.

According to Human Rights Watch, “at least three woman, four men, and a 17-year-old boy were arrested between November 7 and 13, and threatened with torture because of their presumed sexual orientation.” Specifically, the detainees were forced to confess, and include the names of others, or a device would be forced into their genitals or anus to “test” their sexual orientation. And if you were wondering, yes, the old law is in violation of international law as well.

And even the Gambian President, Yahya Jammeh, whole-heartedly supports the statute. In fact, Jammeh had made several inflammatory public statements against the LGBTI community. All signs point to a government-headed public witch hunt. Ironically enough, these detestable laws actually violate the Gambian Constitution itself, which expressly requires all people to be treated equal and free from discrimination.

So what’s next? Gambia had to answer for themselves at a UN review, but was able to circumvent the issue. It is uncontended that Gambia is in violation of international human rights treaties, but what is the next step? Can you think of any solutions that would not violate state autonomy? Better yet, at this point how much weight should be given to state autonomy?

Sources: HRW, All Africa

Image: Queermeup.com

W.H. v. Sweden

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The case of W.H. v. Sweden involves, W.H., who is an Iraqi national originally from Baghdad and is of Mandaean denomination. She arrived in Sweden in August 2007 and currently lives there. When she had arrived in Sweden in August, she claimed asylum. The Migration Board and Migration Court reviewed her claim, which was ultimately rejected in 2010. The reason for the denial was because the Migration Court felt that she did not need protection. The applicant relied on Article 3 of the European Convention on Human Rights, which is the prohibition of inhuman or degrading treatment to make her case. The applicant stated that she was at a huge risk of facing inhuman and degrading treatment if she were to return to Iraq because of the fact that she belonged to an ethnic and religious minority. She also added that her being a divorced woman further increased that risk. Her biggest point, however, was that because she did not have any male friends or relatives in Iraq, she would be facing the constant risk of possible assault, persecution, forced marriage, rape, and forced conversion of religion.

On March 27, 2014, the Court in its Chamber judgment unanimously held that the applicant’s deportation to Iraq would not be a violation of Article 3. The Court reasoned that although the applicant could possibly be at the risk of facing inhuman and degrading treatment because of her being a divorced single woman and being from an ethnic and religious minority, she could avoid all of that if she returned to the southern and central parts of Iraq. The Court concluded that as long as she did not return to the outer parts of the Kurdistan Region and stayed within the Kurdistan Region, her status and personal situations would not put her at risk of inhuman and degrading treatment.  The Court, however, took an interesting turn by taking interim measures under Rule 39 of its Rules of Court and told the Swedish Government not to deport the applicant until the Chamber judgment was finalized.

This case was referred to the Grand Chamber at the request of the applicant on September 8, 2014. The Court will be holding a hearing for this case on March 18, 2015.

How do you think this case will turn out? Does the applicant have legitimate reasons to want to stay out of Iraq and ultimately stay in Sweden?

 

Source: ECHR

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In order for a woman to be a police officer in Indonesia the government subjects female applicants for Indonesia’s National Police to discriminatory, cruel, and degrading “virginity tests.” According to Article 36 of the Chief Police Regulation No. 5/2009 on Health Inspection for Police Candidates, it requires female police academy applicants to undergo an “obstetrics and gynecology” examination. However, the regulation does not specify that a “virginity test” will be administered. The “virginity test” is given early in the recruitment process as part of the applicants’ physical exam. Additionally, Human Rights Watch found that the examination has included the discredited and degrading “two-finger test” to determine whether female applicants’ hymens are intact.

According to Human Rights Watch, in October National Police High Commissioner Sri Rumiati declared that in 2010 the head of police personnel, Brig. Gen. SigitSudarmanto, agreed to abolish virginity testing. A police general at the Medical Center claimed the test was no longer applied. However, there is little proof that the National Police have taken any steps to put an end to these “virginity tests.” As of November 5, 2014, the Indonesia’s National Police jobs website stated the following: “In addition to the medical and physical tests, women who want to be policewomen must also undergo virginity tests. So all women who want to become policewomen should keep their virginity.” Thus, married women are not eligible for the job.

Nisha Varia, an associate women’s rights director at Human Rights Watch, stated: “The Indonesian National Police’s use of ‘virginity tests’ is a discriminatory practice that harms and humiliates women. Police authorities in Jakarta need to immediately and unequivocally abolish the test, and then make certain that all police recruiting stations nationwide stop administering it.”

Do you agree with Nisha Varia? Why or why not? I agree with her completely. These “virginity tests” have been recognized internationally as a violation of human rights. Under Article 7 of the International Covenant on Civiland Political Rights (“ICCPR”) it prohibits against “cruel, inhuman or degrading treatment,” which Indonesia has ratified. The “virginity tests” completely violate Article 7 of the ICCPR and the Indonesia government needs to put an end to these cruel and degrading tests.

Additionally, the United Nations Human Rights Committee states in a General Comment that the aim of Article 7 is “to protect both the dignity and the physical and mental integrity of the individual.” It is clear that the “virginity tests” compromises thedignity of women, and violates their physical and mental integrity. These tests discriminate against women because men are not subjected to the “virginity tests.” Therefore, the IndonesianNotional Police discriminate against women thus denying them an equal opportunity to work as police officers.

 

Source: Human Rights Watch

 Image: Birdee

 

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How notable that the genius of Odysseus’ Trojan Horse has lent its name perfectly to the modern “backdoor trojan.”  With this subtle tool in its back pocket, a nation’s hacker unit can infiltrate and neutralize a target with little risk to itself.  With well-placed uploads and the proper patience, governments may achieve their military objectives with little more than a few keystrokes.

The classic example is Stuxnet.  Transmitted to Iran’s Natanz nuclear facility via a humble thumb drive, the worm, allegedly a joint U.S. – Israeli project, made history by sabotaging roughly a fifth of Iran’s nuclear centrifuges.  The worm opened up a new dimension in cyber-warfare:  unlike the blunt-force DDoS attacks perpetrated by Russia in its war with Georgia in 2008, Stuxnet was capable of long-term infiltration; a worm like Stuxnet could stay undetected for long periods of time, lying in wait until the most opportune moment to strike.

It was certain, even then, that Stuxnet was not a one-off.  And now a new back-door remote access trojan has come to light.  According to tech giant Symantec, the advanced piece of malware, known as Regin, is likely the tool of a western government which has used it in systematic spying campaigns against a range of international targets since at least 2008.  The report’s description of the five-stage trojan is ominous:

Regin is a highly-complex threat which has been used for large-scale data collection or intelligence gathering campaigns. The development and operation of this threat would have required a significant investment of time and resources. Threats of this nature are rare and are only comparable to the Stuxnet/Duqu family of malware . . . Many components of Regin have still gone undiscovered and additional functionality and versions may exist.

To date, Symantec has discovered about 100 infections involving the malware.  As reported by Reuters, Russia and Saudi Arabia accounted for about half of Regin’s confirmed infections; other countries targeted included Mexico, Ireland, India, Iran, Afghanistan, Belgium, Austria, and Pakistan.

The quandary from an International Law standpoint is that when attempting to classify the Regin trojan as either a ‘cyber-attack’ or, perhaps, an example of ‘cyber-espionage,’ one runs into the ever-present issue of attribution in cyberspace.  Rule 22 of the Tallinn Manual attempts to codify the standard for approaching this problem.  Under Rule 22, “An international armed conflict exists” only when “there are hostilities, which may include or be limited to cyber operations, occurring between two or more States.”  Note 14 following Rule 22 reports that with Stuxnet,

[c]haracterization was . . . complicated by the fact that questions remain as to whether the Stuxnet operation was conducted by a State or by individuals whose conduct is attributable to a State for the purposes of finding an international armed conflict.

Thus, with Regin, whose operations are perpetrated by an “unknown western government,” the hero Odysseus may yet again have the last word.  Before blinding the giant cyclops Polyphemos, Odysseus introduced himself to the monster as “Outis,” meaning “No-man” in Greek.  When the blinded cyclops left his cave screaming in agony, and calling to his friends for help, he cried out “No-man is killing me by fraud! No-man is killing me by force!”  His friends mocked him, saying “if no man is attacking you, you must be ill . . .”  In the ensuing confusion, Odysseus and his crew slipped away unscathed.

By way of analogy, the modern cyber-war creates a similar opportunity for governments following in Odysseus’ footsteps:  where no clear evidentiary trail exists to the government perpetrating the cyber-attack, crafty states may act behind shadowy programs such as Stuxnet and Regin, gaining intelligence and executing their cyber-operations with impunity.

What tools should the international community employ to bring state actors conducting cyber-attacks out from the shadows?  Share your thoughts in the comments below.

 

Related Readings:

David E. Sanger, Obama Order Sped Up Wave of Cyberattacks Against Iran, New York Times (June 1, 2012), available at http://www.nytimes.com/2012/06/01/world/middleeast/obama-ordered-wave-of-cyberattacks-against-iran.html?pagewanted=1&_r=3&hp&.

William J. Broad, John Markoff, David E. Sanger, Israeli Test on Worm Called Crucial in Iran Nuclear Delay, New York Times (Jan. 15, 2011), available at http://www.nytimes.com/2011/01/16/world/middleeast/16stuxnet.html?pagewanted=all.

Tom Espiner, Georgia accuses Russia of coordinated cyberattack, Cnet.com (August 11, 2008), available at http://www.cnet.com/news/georgia-accuses-russia-of-coordinated-cyberattack/.

Symantec Security Response, Regin: Top-tier espionage tool enables stealthy surveillance (2014), available at http://www.symantec.com/content/en/us/enterprise/media/security_response/whitepapers/regin-analysis.pdf.

Dan Goodin, Highly advanced backdoor trojan cased high-profile targets for years, Ars Technica (Nov. 23, 2014), available at http://arstechnica.com/security/2014/11/highly-advanced-backdoor-trojan-cased-high-profile-targets-for-years/.

Grant McCool, Computer spying malware uncovered with ‘stealth’ features: Symantec, Reuters (Nov. 23, 2014) available at http://www.reuters.com/article/2014/11/23/us-symantec-malware-regin-idUSKCN0J70SH20141123.

Tallinn Manual on the International Law Applicable to Cyber Warfare § 22 (Michael N. Schmitt, ed. 2013), available at http://nuclearenergy.ir/wp-content/uploads/2013/11/tallinn_manual.pdf.

Homer, The Odyssey, Book IX (c. 800 B.C.E.), available at http://classics.mit.edu/Homer/odyssey.9.ix.html.

POST WRITTEN BY: Marlon J.W. Bryan (J.D. ’16), Pace Law School

MBryanImageHuman Rights Watch recently commented on the disappointing state of human rights in Haiti. The country’s former President Jean-Claude Duvalier died on October 4, 2014, without ever being tried for the human rights violations that occurred during his ruthless fifteen years in power. Duvalier’s death without trial is an unfortunate failure to investigate and prosecute the human rights violations that took place during his presidency.

Haiti has a unique and rich history. In 1804, the world shook when a slave rebellion defeated Napoleon’s forces and made Haiti the first independent Black nation in the Western Hemisphere. However, Haiti’s rich history has been blighted by poverty, catastrophe and repression. In 1971, Jean-Claude Duvalier, succeeded his father as Haiti’s president. In his fifteen-year reign, “Baby-Doc” Duvalier oversaw a regime of corruption and mass human rights violations. His abuses included, repressing political dissidents and journalists, torture, disappearances, and extrajudicial killings. Most infamous of these abuses were inflicted by his secret police force, the MSVN (Militia of National Security Volunteers). In 1986, Duvalier fled the island after being overthrown in a coup d’état.

In 2011, Duvalier returned to Haiti after 25 years in exile. Human Rights Watch issued a report stating that Duvalier could be liable under international law for his direct command over the security apparatus that engaged in repressive acts. Moreover, there was evidence that Duvalier would have been liable for crimes by subordinates acting on his direct orders. Initially, a Haitian court found that the statute of limitations barred Duvalier from standing trial. However, in 2013 an appeals court overturned the ruling and ordered the testimony of Duvalier and former members of his government. In February of this year, the charges against Duvalier were reinstated with the court finding that statutes of limitation are never applicable in cases involving human rights violations. At the time of Mr. Duvalier’s death, the investigation had resumed. Had Duvalier gone on trial, it would have been a monumental opportunity for closure and reckoning. In life, Jean-Claude Duvalier was a ruthless and corrupt dictator who lived on graft and excess. In death, his supporters remember him as a symbol of a strong and stable Haiti; to his victims he is a painful scar that will never heal.

Sources:

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The Convention on the Rights of the Child (“CRC”) is 25 years old. Which means,  for 25 years the United States has failed to ratify the treaty, which has become the most ratified human rights treaty in history. In fact, only three countries have failed to ratify the CRC: Somalia, South Sudan and the United States.

The treaty was created out of the belief that children are acutely vulnerable to exploitation and abuse and therefore deserve special protection. The CRC has promoted the best interests of children globally through law and regulation, protecting them from discrimination and abuse and ensuring their right to develop and be heard.

The United States helped lead the drafting of the CRC by contributing provisions to the convention in its final form. Likewise, the treaty incorporates numerous elements of U.S. law and practices.

However, the United States’ failure to ratify the treaty has allowed the U.S. avoids a commitment under international law. The treaty prescribes modest, time-test measures to facilitate the goals of protecting children. These goals require signatory states submit a report within two years of ratification and every five years thereafter to an 18-person committee of human rights experts. The committee then makes non-binding recommendations regarding steps that countries should take to fulfill their obligations. The reports are public in order to make states accountable to their democratic institutions and to the world.

There is a view among U.S. lawmakers that ratification would allow children to sue their parents. However, the treaty contains no such provision and leaves that issue to the discretion of ratifying states. Further, the United States’ failure to ratify suggests an underlying American view that human rights conventions will somehow erode U.S. sovereignty and federalism. This concern is false, considering that the United States has ratified numerous other human rights treaties, including those that protect against torture, discrimination, and genocide. Further, the CRC allows a country to ratify the treaty with reservations, therefore, if the United States fundamentally disagreed with certain aspects of the treaty, they could ratify without being bound.

Even though the U.S. has been a leader on many children’s rights issues, including child labor, problems still persist. Specifically, the United States has been dealing with the influx of unaccompanied minors at the border that are denied due process and the right to counsel in immigration hearings. There are still fourteen states that have no minimum age for trying children as adults, and some of those states still impose life sentences.

The current administration has stated their desire to ratify the CRC. Meanwhile, recent Supreme Court cases have brought American law closer to full compliance with the CRC. However, the United States is currently not subject to the transparent practices required under the CRC. Do you think the United States should ratify the CRC? Is the perceived threat to sovereignty unfounded? Further, what risk is posed to the United States if they subject themselves to self reporting under the treaty? Even if American law complies with the treaty, do you believe that ratification would renew the worlds focus on children’s rights?

Sources: Al Jazeera ; CRC Text; UN; HuffPo

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ADIZ Blog

Approximately one year ago, China declared to the international community they had established an Air Defense Identification Zone (ADIZ) in the East China Sea. An ADIZ is an extended territorial airspace where a declaring state has the authority to identify any approaching aircrafts before they are permitted to enter into the state’s airspace. Also, in some circumstances, the declaring state can intercept some aircrafts for interrogation if the aircraft is believed to pose a threat.

The fundamental purpose of ADIZs are simply to protect a state’s national security interests. Prior to China’s announcement last year, a number of other nations also adopted ADIZs including the U.S., Japan, and Canada. The authority for a state to establish an ADIZ is recognized under customary international law. It’s founded on the principal that every state has the right to create its own security measures.

Due to the ongoing tensions between China and other South East Asia countries, specifically Vietnam and the Philippines, it didn’t come as a surprise to many nations that China established its own ADIZ. However, it did raise a significant amount of criticism and controversy. Many ASEAN countries, including Vietnam and the Philippines, have perceived China’s actions as aggressive and proactive, while also questioning its authority to establish an ADIZ.

What’s more, China has recently indicated its intention to establish a second ADIZ in the East Sea. If China was to set up a second ADIZ in the East Sea, it would stretch over the airspace of the Vietnam’s archipelago, Hoang Sa. Additionally, the ADIZ would overlap with Japan’s established ADIZ. This would most likely create confusion for aircrafts that receive conflicting instructions from both nations.

The possibility that China may establish a second ADIZ has expanded the concerns of ASEAN countries to across the international community. In March 2014, at an International Civil Aviation Organization (ICAO) Council held in Montreal, the United States and Japan expressed their opposition to the proposal and found that the ADIZ would be contrary to international law. The U.S. and Japan contend that China would be extending its territorial limits too far. “The United States and Japan submitted that China’s ADIZ contravenes the principle of ‘freedom of overflight’ in high seas as codified in Article 87 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).”

Do you think that China would be overstepping its jurisdictional authority if it establishes a second ADIZ? Or do you think that an establishment of a second ADIZ is a reasonable precautionary measure?

Sources:
Experts Worry Over the Possibility of China Setting up ADIZ in East Sea, Tuoitrenews, The News Gateway of Vietnam, November 19, 2014.

Jaemin Lee, China’s Declaration of an Air Defense Identification Zone in the East China Sea: Implications for Public International Law, American Society of International Law, August 19, 2014.

David A. Welch, What’s an ADIZ? Why the United States, Japan, and China Get it Wrong, Foreign Affairs, December 9, 2013.

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