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Justice For All

It is an unfortunate truism that, in a domestic setting, most parties who pay a lawyer “receive only as much justice as they can afford.”  These expenses can mount exponentially when the claim is international in nature.  Thus, absent a strong contingent of international practitioners willing to undertake pro bono publico work before international fora or in transnational litigation, serious limitations preclude the disenfranchised from accessing justice.  Frequently, such claims, even when brought, do not ultimately pass muster.  The unfortunate result is that those most in need of protection before international bodies, or domestic courts that host transnational litigation, find themselves at a marked disadvantage.

The International Bar Association recognizes that “[p]erformance of pro bono work has a positive systemic impact and enriches the true value of the legal profession,” and provides prospective pro bono counsel with the opportunity to seek support in filing international legal claims (or domestic claims on behalf of an international party).  The IBA launched this project along with an online ‘matching’ model that connects parties in need with legal resources and means of support in an effort “to promote volunteering as an integral part of legal practice” and “to promote and reinforce the Rule of Law.”  This service is particularly helpful in providing remote or otherwise disadvantaged regions of the world with access to representation.

Absent talented attorneys willing and able to address the plight of the voiceless, many viable–or even non-viable yet important and controversial–claims may never see advancement to international bodies uniquely positioned to address them.  This would represent a loss to the international community, which deserves the opportunity to review such injustices, and to properly ensure the equitable administration of justice in resolving them.

Selected Readings:

M. Clara Garcia Hernandez & Carole J. Powell, Valuing Gideon’s Gold: How Much Justice Can We Afford?, 122 Yale L.J. 2358, 2375 (2013).

Santiago A. Cueto, International Litigation Costs: A Comparative Study, International Law Business Advisor (Jun. 4, 2013), http://internationalbusinesslawadvisor.com/international-litigation/.

Maya Steinitz, The Case for an International Court of Civil Justice, 67 Stan. L. Rev. Online 75 (2014), http://www.stanfordlawreview.org/online/the-case-for-an-international-court-of-civil-justice.

Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 2007 I.C.J. 191, at para. 399 (finding no state responsibility absent “effective control” over the parties committing the crime of genocide)

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 185 L. Ed. 2d 671 (2013) (finding the Alien Tort Statute inapplicable to violations of international law occurring within another sovereign’s territory).

Daimler AG v. Bauman, 134 S. Ct. 746, 187 L. Ed. 2d 624 (2014) (reversing the Ninth Circuit’s finding of general jurisdiction in a case involving “mothers of the disappeared” in Argentina who brought suit against Petitioner via its wholly-owned California subsidiary, MBUSA, in connection with the activities of its wholly-owned Argentinian subsidiary)

International Bar Association, IBA Pro Bono Site, http://www.ibanet.org/IBA_Pro_Bono.aspx (last visited Feb. 10, 2016).

Hassan Saad, 13, who fled Idlib in Syria, flashes a victory sign while walking outside the refugees camp near the Turkish-Syrian border in the southeastern city of Yayladagi.   Image: Freedom House Images, https://www.flickr.com/photos/syriafreedom/6819475588.
Hassan Saad, 13, who fled Idlib in Syria, flashes a victory sign while walking outside the refugees camp near the Turkish-Syrian border in the southeastern city of Yayladagi.
Image: Freedom House Images.

The plight of Syrians—many of whom would likely receive refugee status in most states that are signatories to the 1951 Convention and 1967 Protocol on the Status of Refugees—is evidenced by their “temporary protection” status in Turkey under the LFIP (Law on Foreigners and International Protection).  While Turkey is a signatory to both the 1951 Convention and the 1967 Protocol, it has raised a geographical limitation with regards to the 1967 Protocol.  Under this reservation, persons of non-European origin fleeing to Turkey receive rights limited “to temporary asylum before being resettled in a third country.”  While the grant of this status is significantly more generous than the rights granted to those fleeing persecution who seek resettlement in many other states in the Middle East, the unfortunate result of Turkey’s stance is that the mass influx of Syrians fleeing the protracted and bloody civil war in their home country may not claim the full panoply of rights that would be guaranteed to them under the 1951 Convention and the 1967 Protocol—at least, not while they remain in Turkey.

Turkey has received the largest number of Syrian refugees due to its open border policy.  At present, over 2 million Syrians have sought refuge in Turkey.  In November of 2014, Turkey’s Finance Minister reported that the financial costs associated with hosting Syrian refugees in Turkey have exceeded $4.5 billion, including $2.3 billion spent by the Turkish central government.  Syrians under the LFIP’s temporary protective status remain in a state of relative limbo.

The rights under Turkish law for those under the LFIP’s temporary protection provisions are limited.  While “applicants and international protection beneficiaries as well as their legal representative or lawyer may examine or obtain a copy of the documents in the personal file pertaining to the applicant or international protection beneficiary,” neither an applicant nor counsel may “examine or obtain a copy of documents … relating to national security … protection of public order … [and] prevention of criminal activity.”

Boston University School of Law’s International Human Rights Clinic reports that only lawyers registered in Turkey are able to access detention centers, and must show authorization for particular clients before they are able to access the detention centers; in addition, these Turkish attorneys are unable to gain authorization to visit clients if they do not know the identity of a detainee they intend to visit within the center.

Regardless of how Turkish authorities choose to interpret the LFIP, the rights afforded to Syrians under temporary protection must include their legal rights under international law and customary norms.  These include, at a bare minimum, non-refoulement (which is a jus cogens norm) and other positive rights granted under international treaties, such as the International Covenant on Civil and Political Rights, to which Turkey is a state party.  As “persons” under the ICCPR, relevant rights for those under temporary protection include the rights of all persons within the territory of a state to be applied without distinction based upon (among other distinctions) “race, … language, religion, political or other opinion, national or social origin, … birth, or other status.”  In addition, Article 14 of the ICCPR requires an application of a minimum of due process to all persons within a signatory state, who “shall be equal before the courts and tribunals.”   Moreover, under the same article, “[i]n the determination of any criminal charge … or of … rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”  Finally, ICCPR Article 26 requires that “[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law” with regards to affiliation with the same protected grounds enumerated in Article 14.  These rights are derogable, but only under limited circumstances.

This failure of due process and equal protection under law likely runs afoul of the ICCPR, which Turkey signed on August 15, 2000 and ratified the treaty on September 23, 2003.  While states may derogate from Articles 2, 14, and 26 of the ICCPR in situations involving “a public emergency that threatens the life of the nation and the existence of which is officially proclaimed,” it is required that such measures must not be “inconsistent with their other obligations under international law,” and must not “involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”  The severity demanding a public emergency exists “only if and to the extent that the situation constitutes a threat to the life of the nation.”  While the presence of the PKK and ISIS at and within Turkey’s borders might arguably meet such a standard, Turkey has not declared such a public emergency, or a relevant derogation from the ICCPR, as of the present date (with regards to the Syrian conflict or otherwise); it most certainly is capable of doing so, having elected to derogate from human rights treaties on thirty-four separate occasions over the course of thirteen years in total.

Millions of Syrians fleeing the conflict in their homeland have remained in Turkey.  With no sign of an end to the conflict, Syrians are likely to remain in Turkey for the foreseeable future.  Their treatment at the hands of the Turkish government and its people are likely to leave an indelible mark upon them, upon the Middle East in general, and upon Turkey in particular, if efforts to preserve protections clearly enumerated under international human rights conventions are not corrected.


Sources and Related Readings:

Yabancılar ve Uluslararası Koruma Kanunu [Law on Foreigners and International Protection], Law No. 6458 of April 4, 2013 (Turk.) [hereinafter “LFIP”], (unofficial English translation)

Convention Relating to the Status of Refugees, Aug. 24, 1951, 189 U.N.T.S. 137.

Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267.

Reservations and Declarations on the 1967 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 (“The Government of Turkey . . . applies the Convention only to persons who have become refugees as a result of events occurring in Europe.”).

International Covenant on Civil and Political Rights, Nov. 3, 1972, 999 U.N.T.S. 171.

United Nations Treaty Collection, Chapter IV:  Human Rights: 4. International Covenant on Civil and Political Rights, Status (last visited Dec. 22, 2015).

Sarah Bidinger, Note, Syrian Refugees and the Right to Work: Developing Temporary Protection in Turkey, 33 B.U. Int’l L.J. 223 (2015) (noting that “Prior to April 2014, Syrians were informally allowed in Turkey by means of a government directive on temporary protection.”).

UN Security Council, Statement [made on behalf of the Security Council, at the 7504th meeting, 17 Aug. 2015, in connection with the Council's consideration of the item entitled "The situation in the Middle East"] S/PRST/2015/15 (Aug. 17, 2015).

Syria’s Refugee Crisis: Public Health Challenges, Columbia Univ. (Oct. 20, 2015)  (video commentary by Dr. Neil Boothby of the Mailman School of Public Health).

At a glance: Syrian Arab Republic, UNICEF (updated Dec. 31, 2013) (last visited Dec. 10, 2015) (noting a net primary school attendance rate among Syrian male children of 86.9%, and a net primary school attendance rate among Syrian female children of 86.4%).

John Cassidy, The Economics of Syrian Refugees, The New Yorker (Nov. 18, 2015).

No Escape: Civilians in Syria Struggle to Find Safety Across Borders, Norwegian Refugee Council (Nov. 13, 2014).

Ercüment Tezcan, Legal Status of the Thousands Fleeing From Syria, 5 USAK Yearbook 283 (2012).

Vienna Convention on the Law of Treaties, Jan. 27, 1980, 1155 U.N.T.S. 331.

Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, 3 Bevans 1153.

Sarah Bidinger et al, Working Paper, Protecting Syrian Refugees: Laws, Policies, and Global Responsibility Sharing, Boston University School of Law International Human Rights Clinic (2014).

Manfred Nowak, UN Covenant on Civil and Political Rights. CCPR Commentary (2nd rev. ed., Kehl am Rhein: Engel, 2005).

Emilie M. Hafner-Burton, Laurence R. Helfer, and Christopher J. Fariss, Emergency and Escape: Explaining Derogations from Human Rights Treaties, 65 Int’l Org. 673 (Aug. 19, 2011).

Post written by April Mckenzie, JD candidate 2017

There are currently seven countries in which homosexuality may be punishable by death. Five of the seven countries are heavily religious. Currently there is little in international law that expressly prohibits these countries from having laws against homosexuality. With the exception of the Charter on Fundamental Rights of the European Union, there is nothing explicit on sexuality or sexual rights in any major human rights instruments, such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economical Social and Cultural Rights (ICESR), European Convention on Human Rights (ECHR), or the American Convention on Human Rights (ACHR). Thus, the UDHR and the human rights conventions do not expressly protect LGBT rights. But it has been repeatedly argued that sexuality rights are implied through a penumbra of the UDHR, ICCPR, ECHR, and ICESCR, specifically under those articles guaranteeing (a) the right to privacy, (b) the right to equality and non-discrimination, (c) the right to freedom of expression and information, (d) the right to freely assemble and to form associations, (e) the right to life, and (f) the right not to be treated in a cruel, inhuman, or degrading manner.

The United Nations Universal Declaration of Human Rights, the foundational instrument on human rights, and major human rights treaties, proclaim the right of every individual to be protection from deprivation of life. These instruments state that no one shall be subjected to cruel or degrading punishment. Although the death penalty may not violate fundamental human rights obligations in all cases, international law does limit the death penalty only to the most serious offenses. Article 6(2) of the ICCPR, provides:

 In countries which have not abolished the death penalty, sentence of death may be   imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.  (Emphasis added.)

Carrying out the death penalty on individuals for homosexuality violates this obligation. Under no circumstances can homosexuality—a status—be considered one of “the most serious crimes” within the meaning of article 6(2). Furthermore, if there exists no specific International Human Rights law that is expressed through treaty preventing a country from prosecuting individuals for homosexuality, one could argue that under the treaties making up the Bill of International Human Rights this prosecution violates the fundamental norms of human rights based on the right to life, and all other implied rights establishing sexuality rights discussed above.

For further proof that these seven countries are violating International Human Rights principles one can look to state practice. According to Amnesty International, 140 countries have abolished the death penalty in law or in practice. Out of the remaining 43 countries, only seven have the death penalty for homosexuality. Considering that approximately 80 countries in the world, including the seven countries with capital punishment, criminalize homosexual contact, it is evident that the right to sexuality is a heavily debated issue. It is also evident that sexual rights have not yet achieved world consensus and recognition. Although the right to determine and practice one’s own sexuality is debated, it is evident that the ICCPR, other human rights conventions, and state practice overwhelmingly demonstrate that carrying out capital punishment for the “crime of homosexuality” violates international law.

Under the Charter of Fundamental Rights of the European Union (2009), the 28 European Union countries have banned discrimination on the basis of “sexual orientation” (article 21).  Furthermore, European countries apart from the European Union have held that prosecution of an individual for the sexuality is a violation of Human Rights. Adding the recent decision by the United States Supreme Court that Marriage Equality allows for same sex couples to enjoy the rights and benefits of marriage under law, one can argue that the right to love and be with someone of the same sex has begun to crystalize into customary international law. The next question is if these sexual rights are starting to crystalize into customary law, what does that mean for those seven countries with the death penalty?

Post written by Conor Strong, JD candidate 2017

President Obama recently signed into law the US Commercial Space Launch Competitiveness Act (Space Act). Because it is the first time the US government has ever authorized exploitation of outside resources, this is arguably the most expansive property rights law ever passed. The Act will authorize private U.S. companies to own and sell resources they extract from objects in space. Supporters of the bill, such as Planetary Resources- a company planning to sell metals and water mined from asteroids- analogize the provisions of the law with international law governing fishing in international waters.

Here is one of the key provisions of the bill:

§ 51303. Asteroid resource and space resource rights

A United States citizen engaged in commercial recovery of an asteroid resource or a space resource under this chapter shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell the asteroid resource or space resource obtained in accordance with applicable law, including the international obligations of the United States.

Opponents to the legislation say the above provision violates U.S. obligations under the Outer Space Treaty of 1967. The most important of those obligations is set out in Article 1 of the Treaty:

The exploration and use of outer space, including moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic benefit or scientific development, and shall be the province of all mankind.

In an attempt to avoid conflict with the 1967 Treaty, the Space Act limits itself to authorizing private citizen (as opposed to “national”) exploitation, and subjecting that exploitation to “international obligations of the United States.” This begs the question of whether allowing private exploitation is any better than allowing national exploitation. I would argue that it would in fact be worse. Without an explicit international treaty regulating commercial space resource exploitation, we will find ourselves in yet another one of Hardin’s Tragedy of the Commons situations in which these private individuals behave contrary to the best interests of the whole group by depleting resources that may become necessary due to current excessive degradation of Earth’s own resources. While this is only limited to US citizens, you can bet your bottom dollar that other spacefaring countries will follow suit passing their own domestic legislation mirroring the Space Act. Furthermore, analogizing these provisions with international law governing fishing in international waters is meritless. The United Nations Convention on the Law of the Sea (UNCLOS) provides a complex, binding framework that defines the rights and responsibilities of nations with respect to the resources of the world’s oceans, establishing guidelines for businesses, the environment, and the management of marine natural resources. Allowing a handful of companies to privatize and exploit these resources is certainly not “for the benefit and in the interests of all countries”. Thus, the Space Act clearly frustrates the purpose of the Outer Space Treaty making it a violation of international law.

Post written by Luis Rodriguez, JD expected ‘16, Pace University School of Law

The intensification of terrorist attacks in the past decade have led to strict border security against immigration and counterterrorism, pushing the boundaries of democratic governments around the globe. Countries throughout the world have implemented detention policies as a means of punishment, crime prevention, or administrative convenience in response to global migration. The policies have led to massive violations of international human rights law, humanitarian law as well as refugee law.

Not surprisingly, the United States has been the pioneer of the implementation of these practices and detention.

The Modern U.S. immigration detention estate first began to take shape in the early 1980s, when the Reagan-era INA began systematically apprehending undocumented migrants from certain countries in response to growing migration pressures from the Caribbean and opened a number of new detention centres in Puerto Rico and the U.S. mainland to cope with the resulting surge in detainees.

The policies carried out by governments to place migrants in detention centers commenced with “off-shore management”. After the Cold War, United States Coast Guard vessels began to chase down smuggling boats. As stated by Flynn,

The Curts’ [Guided-Missile Warship] operational transformation is part of a broader, global phenomenon involving efforts by the world’s major industrialized democracies to block—or ‘manage’—migrants long before they reach their intended destinations.

The implementation of this policy led to one of the worst Human Rights violations in recent memories. In 1991, the U.S. Government began to detain thousands of Haitians in Guantanamo Bay who were fleeing persecution from the Haitian government. Some of the Haitians were left in the detention center for years. The U.S. Government was able to intercept Haitian vessels on the high seas due to a treaty signed by the Reagan Administration and Haitian Dictator Duvalier.  The reasoning by the U.S. Government: Admitting and processing thousands of Haitian refugees to the U.S. was too risky—especially with reports that many Haitians were infected with the AIDS virus. When the refugees were placed in Guantanamo Bay—U.S. immigration and asylum policy didn’t apply. Although it was promoted as a humanitarian mission, the Haitian refugees were detained in makeshift tent cities behind barbed wire on a U.S. military base.

The United States policies and similar policies executed by other countries cannot continue to treat refugees and migrants in an inhumane way. We cannot treat Syrian and other Middle Eastern refugees as criminals especially in the humanitarian crisis we now face. These people have lost loved ones, community members, and have had everything they own taken from them.

The deprivation of liberty of non-citizens for reasons related to their immigration status is inexcusable and as global citizens we must make sure that to discourage the expansion of immigration detention.

 Sources:

  1. Barbara Crossette, Haitians Fleeing Again to U.S. Asylum, N.Y. Times, (Jan. 28, 1992), http://goo.gl/ZkcW0N.
  2. Cathryn Costello, Human Rights and the Elusive Universal Subject: Immigration Detention Under International Human Rights and EU Law, 19 Ind. J. Global Legal Stud. 257 (2012).
  3. Michael Flynn, How and Why Immigration Detention Crossed the Globe, Global Detention Project Working Paper No. 8 (2014).
  4. Brandt Goldstein, Storming the Court, How a Band of Yale Law Students Sued the President—and Won 18 (2005).

Post written by Rebecca Arbolino, J.D. expected 2017.

When Pope Francis addressed the seventieth session of the United Nations General Assembly, he spoke primarily about sustainable development and economic exclusion.  In the beginning of the substantive portion of his address, Francis argued for “a true ‘right of the environment.’” Throughout the address, Francis stressed the right to a habitable environment as a fundamental human right: he explained, for example, that “any harm done to the environment, therefore, is harm done to humanity.”

Pope Francis is not the first to argue for the necessity to preserve the environment in order to ensure human rights.  One of the organizations working to advance international climate initiatives, The Human Rights & Climate Change Working Group, purports that “climate change is a human rights issue.”  According to The Office of the United Nations High Commissioner for Human Rights, “it is now well understood that climate change can and does adversely affect the enjoyment of a broad range of human rights.” In Resolution 18/22 entitled The Effects of Climate Change on the Full Enjoyment of Human Rights, the United Nations Human Rights Council explained that

climate change poses an immediate and far-reaching threat to people and communities around the world and has adverse implications for the full enjoyment of human rights.

The General Assembly addressed many issues during the session, but the need to counter climate change was the star of the show.  Although tempers flared under the guise of political niceties, leaders who were otherwise in conflict agreed upon the importance of sustainable development initiatives.  During the general debate, for example, both Vladmir Putin and Barack Obama emphasized sustainable development.

More interesting than the coincidence of leaders with a history of diametrical opposition is their agreement upon the means necessary to achieve sustainable development.  According to Obama, we must “harness the potential of clean energy” to address “the ravages of an ever-warming climate.”  Putin also stressed the need for

fundamental and new technologies…which would not damage the environment, but would be in harmony with it.

In accordance with Pope Francis’s call for sustainable development and the end of economic exclusion, the General Assembly unanimously adopted “a sweeping 15-year global plan of action to end poverty, reduce inequalities, and protect the environment.”  The Sustainable Development Goals of Resolution A/70/L.1 include creating

“a world where human habitats are safe, resilient and sustainable and where there is universal access to affordable, reliable and sustainable energy” by 2030.

Pope Francis focused on the need to address climate change, but he reminded us that multilateral agreements are only half of the battle: “solemn commitments…are not enough, even though they are a necessary step toward solutions.”  Despite the unanimity in pledging to combat climate change, a pledge is nothing without the subsequent, corresponding actions.  As Secretary-General Ban Ki-Moon said before the Sustainable Development Goals passed, “the true test of commitment…will be implementation.”

It remains to be seen whether the Sustainable Development Goals are more than a unanimous but empty pledge.  When the Goals come into effect in 2016, we will start to see whether our world leaders can answer Pope Francis’s call to take

concrete steps and immediate measures for preserving and improving the natural environment.

Dying for Drugs

Post written by Caymary O’Garro, J.D. expected 2016.

In 1997 Iran adopted one of the world’s harshest anti-narcotics laws. At first, it appeared that Iran was being praised by the International community for taking such a strong stance to eliminate and deter drug use. But that has since changed. Iran has been in violation of  international law when it imposed the death penalty for a wide array of drug offenses, including the “trafficking of more than 5kg of narcotics derived from opium or more than 30g of heroin, morphine, cocaine or their chemical derivative” as stated by Amnesty International. The International Covenant on Civil and Political Rights (ICCPR, Article 6(2)) demands that the death penalty be “only imposed for the most serious of crimes” in force at the time of the commission of the crime, and yet an elementary school teacher named Mahmoud Barati was recently sentenced to execution by hanging for allegedly selling drugs.

According to an Iranian Human Rights Organization, Barati was implicated by a drug dealer who believed that Barati had informed on him and so he incriminated Barati, his mother, and sister. Police officials convinced Barati that if he admitted to this crime his family could go free and he would be able to explain to the court that the charges against him were false. The judiciary never considered his statements nor did they consider the letter written by the original drug owner who recanted his accusations against Barati right before his execution was carried out. Barati’s case has also come under scrutiny by the international community because of the unanswered questions about how the Iranian government obtained his “confession.” It is suspected the Barati was subjected to torture and other ill treatment, which would also be a violation of the ICCPR (Article 7). If there was any question as to whether drug offenses fell under the category of “most serious crimes,” the UN Human Rights Committee charged with monitoring government compliance to the ICCPR has said no.

Under the Universal Declaration of Human Rights and the ICCPR, everyone is entitled to life and a fair trial. A fair trial cannot be had when a country may be using such methods to violate the basic human rights of its citizens. It is understandable that Iran faces a huge drug problem because it is located among major drug smuggling routes. The United Nations Office of Drugs and Crime in the past (2011) has agreed to increase its cooperation with Iran over the fight against drugs, but such killings undertaken by Iran are atrocious. As of September of this year Amnesty International has noted that there have been over 700 executions in Iran, most of them resulting from drug convictions. Amnesty International also observed that the deputy of Iran’s Centre for Strategic Research has admitted that the death penalty has not reduced the drug trafficking levels in Iran. The important question then becomes, why does Iran ignore the international community’s call to end the death penalty for drug offense?

Post written by Samantha Miller, J.D. expected 2017

Four Courts, Dublin, IrelandIn late May, the United States District Court for the Southern District of New York sentenced Ross Ulbricht to life imprisonment for his involvement in running the Silk Road website, which allowed people to anonymously buy and sell drugs, counterfeit money, and other illicit items. Ulbricht allegedly had help operating the website from others including Gary Davis, an Irish citizen. The United States has sought his extradition from Ireland.  Davis, however, suffers from Asperger’s Syndrome and depression. An Irish court is now considering whether Davis, given his disabilities, would face prison conditions, if extradited to the US, that would lead to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR).

Article 3 of the ECHR states that “No one shall be subjected … to inhuman or degrading treatment or punishment” (emphasis added). If Davis can show that his imprisonment in the US would violate Article 3 of the ECHR, then his extradition would be barred, and he would not have to stand trial in the US. In Aswat v. the United Kingdom, the European Court of Human Rights (ECtHR) held in 2013 that Aswat’s extradition would amount to the inhuman and degrading treatment that is prohibited by Article 3. If extradited, Aswat was likely to be imprisoned at U.S. Penitentiary Administrative Maximum Facility at Florence, Colorado, a supermax prison. The ECtHR reasoned that given Aswat’s severe paranoid schizophrenia, the harsh prison conditions at the supermax prison would constitute inhuman and degrading treatment. Therefore, the Court barred Aswat’s extradition to the US. (Subsequently, however, the US gave assurances about the prison conditions in which Aswat would be held, the ECtHR found that these assurance to be sufficient enough to allow extradition, and the UK extradited him.)

Davis’s case is distinguishable from Aswat’s case. Unlike Aswat, Davis is free on bond, he has not been institutionalized in a mental health hospital, and little evidence has been offered to show the severity of Davis’s mental illness. Furthermore, Davis’s attorney stated that Davis was likely to be held in a medium security prison in the US rather than in a supermax.  Davis’s counsel still claims that that the conditions in the prison could cause a significant decline in Davis’s mental health. The hearing is scheduled to resume in October. However, given the state of the case now, if the Irish court were to hold that Davis’s extradition violates Article 3, then the court would be lowering the standards for inhuman and degrading treatment, because Davis’s mental condition and the prison condition that Davis would face in the US does not appear to be as severe as the ones that Aswat would have faced if he had been extradited to the US.

So the question that one must ask, is whether having a mental illness makes imprisonment within a medium security prison contrary to Article 3 of the European Convention on Human Rights, barring extradition to one of the oldest and greatest democracies with a generally good human rights record?

References:

POST WRITTEN BY: Hannah Hollingsworth, J.D. expected 2017

Michelle Obama

In April, 2014, over 200 girls were kidnapped at school in Chibock, Nigeria by the terrorist group Boko Haram. Boko Haram is a Muslim extremist group who oppose western education. The outrage at the lack of attention by the Nigerian and international leaders to the missing girls led to the social media #BringBackOurGirls movement. Everyone from Michelle Obama to Jessica Biel posted a selfie holding a piece of paper with #BringBackOurGirls.

Over a year later, the attack is widely known and talked about but what change did the hashtag bring? Boko Haram, according to an Amnesty International report, has abducted over 2,000 women and girls. The Chibok schoolgirls are not the first or last to be taken by the terrorist group. However, the social media movement helped bring attention to the major violations of human rights and international law going on in Nigeria at the hands of Boko Haram. The girls are still missing, over 500 days later. Some of the girls are married off, others taught to fight, others killed, raped, and sold.

What is the international community doing to resolve the issue? The ICC has been investigating Nigeria since 2013 for failure to deal properly with the crimes committed within their boarders, but has yet to bring anyone to justice for the atrocities that Boko Haram have committed in Nigeria. The Security Council added Boko Haram to their Al-Qaida sanctions list. This makes it more difficult for supplies to be sold to the group without repercussions on suppliers. While Boko Haram is weakened, they are still active and still have our girls. These war criminals need to be stopped with more action than is currently being taken.

While President Johnathan Goodluck was in office, he did little to address this issue. Now that a new president has been elected the international community needs to step up and take action. Under the doctrine of Responsibility to Protect, the international community has a duty to take more effective action to resolve these war crimes and human rights violations. I do not necessarily advocate violating Nigerian state sovereignty, but the state has not publically denied help and therefore may consent. Issues such as these quickly cross international borders and become international issues. When terror strikes a nation so forcefully, as Boko Haram, people flee their nation to find more stable living conditions. The issues in Nigeria have directly affected the surrounding countries, Chad, Cameroon, and Niger, with displaced peoples and fear that Boko Haram may cross the Nigerian boarder to attack their schools. Kidnapping women and children civilians violates Common Article 3 of the Geneva Convention of 1949, Article 8(2) of the Rome Statute of the International Criminal Court, and several other multilateral human rights treaties. The war crimes and human rights violations need to be stopped, not just acknowledged.

What is the next step? Do you think that the international community has a duty to stop the human rights violations going on in Nigeria? If not, when is the issue big enough to demand international help?

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Taser-x26Steve White, Head of the Police Federation of England and Wales, announced today on BBC Radio 4 that he wants to put a TASER in every front-line officer’s pocket.  White is not alone in pursuing the standardization of the TASER in Europe; Italy’s commissioni Giustizia e Affari costituzionali della Camera dei Deputati (commission for Justice and Constitutional Affairs of the Chamber of Deputies) has also recently moved to enact a similar measure into lawTASER International’s website claims that 625,000 of its devices, used by nearly 17,000 agencies in over 100 countries, saving a life from what would otherwise be a lethal use of force by law enforcement every 30 minutes.

While White’s proposal is by no means a cure-all — TASERs can be ineffective in close quarters and Amnesty International has cautioned that they are not as ‘non-lethal’ as the stun gun industry might claim — they can be an effective method for saving lives when police receive training in correctly prioritizing their use.  In 2010, for instance, a grand jury in San Mateo, California concluded that TASER devices can be a use of force alternative to the lethal force of a firearm. In doing so, the grand jury noted the Sheriff’s Department modified its policy to require a higher threshold for the deployment and activation of TASER devices by its deputies by placing their priority lower on the ladder than “specialty impact munitions” (e.g. rubber bullets or 12-gauge bean bags), but higher on the ladder than the use of lethal force.

Interpol has received similar guidance.  In a report shared with the intergovernmental police organization, the Canadian Police Research Centre (CPRC) noted several medical tests and conclusions conducted in the US, Canada, the UK, and Australia.  The study noted that “Definitive research or evidence does not exist that implicates a causal relationship between the use of CEDs and death,” citing “excited delirium” as a more common cause of death from TASERs than cardiac arrest.  Additionally, a Nevada study cited by the Centre noted that the TASER is ”well below the level established as ‘safe’ by the federal [U.S.] government and International European standards in approving such devices as electrified cattle fence, and the risk of cardiac complications is low.”

In an interview with the Huffington Post in December of 2014, Rick Smith, the CEO of TASER International, suggested that TASER devices could have saved lives in recent police activity that resulted in the deaths of Michael Brown in Ferguson, Missouri and Eric Garner in Staten Island, New York:

[Ferguson] would have been the perfect situation for a Taser. Now, I can’t go back and say that [Officer Wilson] would have used it. I wasn’t there. But, big, unarmed, aggressive people, that’s the number one use case for Taser devices. We want to get a Taser on every cop’s belt so that they have every option to use before they have to go to a gun.

Should there be an international mandate to require the use of TASER and other non-lethal devices prior to the use of lethal force by police? Are TASERs an effective method for controlling out-of-control arrestees and suspects, as TASER International and some international law enforcement bodies have suggested?  Share your thoughts in the comments below.

Related Readings:

Tasers for all front-line officers’ – Police Federation, BBC News (Jan. 31, 2015).

Decreto stadi, primo sì per la pistola elettrica alla polizia, palermomania.it (Sept. 30, 2014) (title – roughly translated:  ”Decree for stages, yes for first electric gun to police”)

Times Police Have Used TASER CEWs in the Field, TASER International (last visited January 31, 2015).

Police Taser use more than doubles – Home Office, BBC News (Sept. 10, 2013).

Tasers – potentially lethal and easy to abuse, Amnesty International (Dec. 16, 2008).

TASERS: Standardizing to Save Lives and Reduce Injuries, San Mateo, Calif. Grand Jury Findings (2011).

Dave Young, Specialty Impact Munitions: design purpose and effect, correctionsone.com (Feb. 19, 2008).

Drazen Manojlovic et al., Technical Report TR-01-2006: Review of Conducted Energy Devices, Canadian Police Research Centre (Aug. 22, 2005) (publishing the findings, made for the Canadian Association of Chiefs of Police, on Interpol’s website).

Natalie Pace, Could Tasers and Cameras Have Saved the Life of Michael Brown? Huffington Post (Dec. 5, 2014).

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