Human Rights and the U.S. Gun Violence Crisis: A New Approach

With the most recent mass shootings at Thousand Oaks Bar in California and the Tree of Life Synagogue in Pittsburgh, Americans are once more reeling from the shock and horror of seeing their compatriots mowed down while undertaking normal daily activities. Innocent men, women, and children have been killed or injured whilst worshiping; enjoying a concert; spending an evening out with friends; attending school; or simply being in the wrong place at the wrong time. Each time shots ring out, the media is full of conversations about “gun rights” and the Second Amendment. But what about human rights? What about the right to life; the right of association; the right to health; the right to safety and security; the right to attend school and receive an education?

11.02.2018- Gun Panel Photo by Mary ButkusOn November 2 and 3, more than 150 people attended a conference at the School of Law entitled, The U.S. Gun Violence Crisis: An Interdisciplinary and Human Rights Approach. Co-sponsored by the Whitney R. Harris World Law Institute at Washington University School of Law, the Washington University Institute of Public Health, The Public Interest Law & Policy Speakers Series, and the American Branch of the International Law Association (International Human Rights Committee), the event brought together leading scholars and experts in the fields of law, psychiatry, sociology, medicine, and public health policy to focus on new approaches to the U.S. gun violence epidemic.

11.02.2018- Gun Panel Photo by Mary ButkusMike McLively, director of the Urban Gun Violence Initiative at Giffords Law Center to Prevent Gun Violence, opened the conference by highlighting the scope and scale of the U.S. gun violence epidemic. He noted that more than 30,000 people die each from gun violence – violence that is, for the most part, easily prevented by simple and common sense regulation or even executive action. He noted that more than 60 percent of those killed by gun violence have committed suicide with a gun; deaths that were largely preventable through simple measures like waiting periods to purchase firearms. Others noted the disproportionate impact of gun violence on communities of color and young people, as well as the exportation of the U.S. gun violence crisis to third countries through the trafficking of weapons from the United States. The usefulness of international human rights regimes in reframing thinking about this issue, and the important work already being done on this issue by U.N. bodies was noted by several participants. Barbara Frey, in particular, has worked on this issue for many years at the U.N. in her capacity as the alternate U.S. member of the U.N. Sub-Commission on the Promotion and Protection of Human Rights and as Special Rapporteur to the Sub-Commission on the issue of preventing human rights abuses committed with small arms and light weapons.

Epstien_WLM_0156Lee Epstein, Ethan A.H. Shepley Distinguished University Professor, spoke insightfully about the history of the relationship between the Second Amendment in the U.S. Supreme Court and the evolution of conversations around gun rights. Professor Epstein noted that the relatively recent emergence of an individual right to bear arms can be traced to a flurry of recent law review articles advocating for this position. She suggested that further social science research and legal research could therefore contribute to the solution of the current crisis.

alpers_wlm_0227.jpgFinally, Philip Alpers, founder of GunPolicy.org, concluded by offering a comparative analysis of the crisis and its resolution in Australia as a result of legislative action, gun buybacks, and a change in legal and popular culture with respect to guns and gun ownership.

During the second day of the conference, speakers met to discuss the conference, as well as a Report on the topic prepared by Harris Institute Fellow Madaline George and myself. The Harris Institute’s Report, which concludes that the U.S. government has failed in significant respects to adequately protect the human rights of individuals living in the United States from gun violence, will be published in the coming months. The papers from the conference will appear in a special symposium issue of the Washington University Journal of Law and Policy in 2019. The Institute has already presented testimony on the U.S. Gun Violence Crisis to the Inter-American Commission on Human Rights and is working on testimony before other human rights bodies as well.

To learn more about the Harris Institute’s Gun Violence Initiative, visit our website.

Experts' Meeting at Washington University School of Law

John Bolton is right (sort of)—the ICC should not be able to prosecute Americans. How US law has major gaps in domestic accountability for war crimes.

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US National Security Advisor John Bolton. Photo Credit Gage Skidmore.

It has long been known that US National Security Advisor John Bolton is no fan of the International Criminal Court (ICC). But today marked a dramatic step up in his rhetoric, ahead of the ICC’s decision about an investigation into possible war crimes and crimes against humanity in Afghanistan. Despite the fact than any ICC investigation will probably focus on the Taliban, the US is worried that American troops stationed in the country may be vulnerable to prosecution.

Ahead of the ICC’s announcement, Bolton claimed that the US will “ban its judges and prosecutors from entering the United States. We will sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans.” (However, it seems unclear if the President actually has the legal authority to do this.)

John Bolton is right about one thing: the ICC should not be able to prosecute Americans for war crimes or crimes against humanity. The fact that the ICC can reveals huge gaps in the American domestic legal system’s ability to hold citizens and foreign nations residing in the US accountable for mass atrocities.

Bolton’s pronouncements to the contrary, the ICC only has jurisdiction over crimes included in its statute committed by citizens or in the territory of states party to the Rome Statute. That is why the ICC only theoretically has jurisdiction over Americans for crimes committed in Afghanistan (and not, for instance, Yemen). Furthermore, the ICC is a court of last resort. The principle of complementarity means that the ICC can only prosecute individuals if other states are unwilling or unable to prosecute them first.

Despite Bolton’s claim that his opposition to the ICC is to protect American service members, US military personnel are arguably more protected from ICC prosecution by the principle of complementarity than other American civilians. The US military’s court martial system is generally ‘willing and able’ to hold service members accountable for war crimes and crimes against humanity. However, there is a huge gap in the American legal systems’ ability to hold American civilians and foreign nationals residing in the United States accountable for crimes against humanity and war crimes committed abroad.

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Cautionary tales for the Mueller Probe from the International Criminal Tribunal for the former Yugoslavia

 

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Photo by the National Archives and Records Administration

“I just can’t wait to hear the final report of the Mueller probe!”

Even those not normally interested in the intricate details of complex legal investigations have found themselves obsessed with the criminal investigation at the center of our nation’s political drama—the Special Counsel Investigation into Russian interference in the 2016 election, or the Mueller probe.

Both sides of the political aisle are awash with speculation about what the final report might reveal (and it’s probably as damning as whatever is in Donald Trump’s tax returns). Whatever you think it might disclose, we all seem convinced that the investigation will prove to the American public once and for all just what was going on during the 2016 election.

But international justice offers a cautionary tale about the ability of criminal justice mechanisms to draw a line in the sand about political events.

Very popular criminals 

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The International Criminal Tribunal for the Former Yugoslavia

 

 

In 1993, the United Nations established the International Criminal Tribunal for the former Yugoslavia (ICTY) in order to try those most responsible for the crimes committed during the Balkans wars of the 1990s. In December 2017, it sentenced former Bosnian Serb general Ratko Mladić, also known as “the Butcher of Bosnia,” to life imprisonment for genocide, war crimes and crimes against humanity. Justice, one might infer, had been served. Who could deny the atrocities now?

After the Mladić verdict, in Srebrenica—a town whose name became synonymous with the 1995 genocide—mayor : “Mladić will be remembered in history and this sentence only strengthens his myth among the Serb nation, which is grateful to him for saving it from persecution and extermination.” For a little less than half of the Bosnian population, Mladić is not a war criminal: he is a hero.

Denials about atrocities of the war are typical and commonplace in the Balkans, even of infamous events like Srebrenica. Despite 2.5 million pages of court transcripts, the ICTY’s findings are not always accepted as true among the people for whom it was established.

There are many theories about why Bosnians have not internalized the ICTY rulings. Some argue that the trials and the judgments were too lengthy, complicated and legalistic for people to understand—the court is located far away in The Hague and the proceedings are conducted in English and French. People in the former Yugoslav simply didn’t watch the trials or read the verdicts. Some point the finger at nationalist elites, politicians and journalists, who used confusion about the ICTY rulings for their own benefit. Still others point out that the defendants were allowed to hijack the trials and use them as political platforms, undermining the ICTY’s ability to communicate with the public.

But the truth was that being subjects of international indictments for war crimes did not really lessen the popularity of any of the Balkans leaders among their constituencies. Continue reading

New supplements to the International Protocol on documentation and investigation of sexual violence in conflict for Iraq, Myanmar and Sri Lanka

Cover_Myanmar_Burmese supplement.jpgOnce hidden and unspoken, reports of sexual violence now feature prominently in daily media dispatches from conflict zones around the world. This visibility has contributed to a new emphasis on preventing and addressing such violence at the international level.

Promoting the investigation and documentation of these crimes is a key component of the international community’s response. However, this response requires thoughtful and skilled documenters.  Poor documentation may do more harm than good, retraumatising survivors, and undermining future accountability efforts.

Recently, the Institute for International Criminal Investigations (IICI) and international anti-torture organisation REDRESS, with the funding support of the United Kingdom’s Foreign and Commonwealth Office (FCO), have launched a series of country-specific guides to assist those documenting and investigating conflict-related sexual violence in Myanmar, Sri Lanka and Iraq.

The guides (available in English, Burmese, Tamil, Sinhalese, Arabic and Kurdish on the REDRESS and IICI websites) complement the second edition of the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict, published in March 2017 by the FCO.

The Protocol aims to support practitioners to document appropriately by providing a “set of guidelines setting out best practice on how to document, or investigate, sexual violence as a war crime, crime against humanity, act of genocide or other serious violation of international criminal, human rights or humanitarian law”. It is a tremendous resource for practitioners, covering theoretical, legal and practical aspects of documentation.

However, as the Protocol itself makes clear, documentation of conflict-related sexual violence is highly context-specific. Each conflict situation and country has individual legal and practical aspects that must be considered alongside the Protocol’s guidelines.

The guides aim to fill this gap by addressing the context for and characteristics of conflict-related sexual violence in the three countries. They address legal avenues for justice domestically and at the international level, specific evidential and procedural requirements and practical issues that may arise when documenting such crimes.

The publication of these guides on the three different countries highlights some interesting comparisons and contrasts.  Although the background to and most common forms of sexual violence differ from country to country, the motivations for the violence have parallels. Similarly, the stigmatisation of survivors is a grave concern in each country, influencing all aspects of daily life for them and the way that institutions and individuals respond to the crimes committed against them.

In all three countries, a landscape of almost complete impunity prevails, and in many situations survivors, their families and practitioners face significant threats to their security – often from state actors (e.g. police, military, state security). This harsh reality is borne out by the fact that although the drafting of the supplements relied heavily on the experience and input of local practitioners, due to security concerns, very few were able to be individually acknowledged for their contributions.  Continue reading

Human Trafficking as a Gendered Phenomenon: CEDAW and a missing jigsaw piece – Part II

In the first part of this blog, we provided a summary of our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective in which we argue that the CEDAW Committee is an important actor whose voice should be heard when discussing States obligations towards the elimination of trafficking and that Article 6 of the Convention needs further clarification/development.

Since publication of our article we have continued to ask ourselves how and why trafficking is divorced from the issue of violence against women within CEDAW’s framework. This posts sets out part of this brief history as a prelude to our article and as part of the history of women’s rights advocacy on these issues. We hope that others can elaborate on the schism between Article 6 and violence against women, and the ongoing lack of a GR on human trafficking.

Gender-Based Violence Against Women

Last year, the CEDAW Committee updated General Recommendation No 19 on violence against women in its General Recommendation No 35 (2017). This GR has garnered much attention for both its content and for its procedure with over 100 women’s groups, NGOs and stakeholders contributing to its promulgation.[1] The Recommendation, which acts as authoritative guidance on the Committee’s interpretation of the Convention’s provisions in relation to violence, acknowledges that despite advances in the field since GR19, gender-based violence against women remains pervasive in all countries of the world and it manifests in a continuum, in a range of settings.[2] The updated substantive statement on gender-based violence against women is a reminder of where we have come and where we still have to go to eradicate violence, and make the right to live a life free from violence a reality.[3]

GR 35 however does not however deal with the issue of human trafficking of women and girls. While trafficking has been mentioned in a number of the Committee’s General Recommendations (GR 26, 28, and 35) the Committee has only done so in passing, instead commenting in its GR on migrant workers that the phenomenon of trafficking could be more comprehensively addressed in its own GR on Article 6. It has remained a mystery to us as to why the Committee has remained interpretatively silent on an important substantive article, leading us to question why Article 6 and violence against women have become separated and whether the Committee has always taken this approach.

An Archaeological Dig

It is well known that the Convention did not include a substantive article on violence against women and that instead GR19 marked an important step in the Committee’s interpretation of the Convention to make explicit the link between violence and discrimination. An analysis of the CEDAW Committee’s session minutes indicates that at the time of drafting GR19, Article 6 (trafficking) formed an integral part of that discussion. GR19 was adopted at the eleventh session, and it was and still is a landmark statement on gender-based violence. It provides an article by article approach setting out how the different articles of the Convention interact and relate to violence against women.

Interestingly, the minutes of the 10th and 11th sessions seem to indicate that originally violence and trafficking were to be considered together in one general recommendation.  The report mentions an anticipated discussion of Article 6 of the Convention and that members were asked to consider the report of the Secretary General on Violence against Women in all its forms, which contained the report of the Expert Group Meeting on Violence against Women, held in Vienna in 1991. We then see that a member (anonymised) expresses concern over the lack of coordination of the CEDAW Committee with the Expert Group and the Commission of the Status of Women. Different experts voiced their consideration at the risk of duplication. One member asked if “it was perhaps necessary to have two separate recommendations: one on violence and one on article 6”.

The report then records that GR19 was adopted as a response to the Expert Group Meeting on Violence against Women and that comments of the Working Group on Article 6, would be picked up at a later session. Ms Bustelo and Ms Aouij volunteered to prepare draft general comments for the next session. At the 12th session, the Working Group recommended that the work should be continued. The minutes of the 12th session thus further indicate that there has been long-standing work on a General Recommendation on Article 6 yet it is unclear from the later minutes what happened and why this GR has not come to fruition. This mystery is underlined further by the Committee’s own statement in the GR on migrant women that there should be a separate recommendation in relation to Article 6 and trafficking.

Conclusion

The work of the Committee continues today and is phenomenally important to women’s rights advocates. The Committee’s work on gender-based violence against women as a form of discrimination together with its specialised status in interpreting human rights norms and obligations in relation to women has been significant and influential. In the context where regional and international courts and tribunals have yet to grasp how trafficking is a gendered phenomenon CEDAW’s interpretative expertise is welcome, and in our view, long overview. Understandably, the Committee has many competing issues to deal with, and we recognise that Article 6 presents particular theoretical and political challenges.  However, the seriousness and pervasiveness of the violations of women and girls’ rights who suffer from human trafficking and exploitation in prostitution demands the Committee’s specialised and expert action. The enactment of GR35 forms another historical moment for the Committee, and for us another reminder that more has to be done to tackle trafficking against women and girls.

[1] ‘The CEDAW Committee’s General Recommendation 35. A renewed vision for a world free of gender-based violence against women’, available at http://ehrac.org.uk/wp-content/uploads/2018/01/EHRAC-Winter-2017-WEB.pdf.

[2] ‘CEDAW General Recommendation 35 draws an explicit link between gender, discrimination and conflict-related violence against women’, available at http://blogs.lse.ac.uk/wps/2017/09/12/cedaw-general-recommendation-35-draws-an-explicit-link-between-gender-discrimination-and-conflict-related-violence-against-women/

[3] ‘CEDAW General Recommendation 35 on violence against women is a significant step forward’, available at http://blogs.lse.ac.uk/wps/2017/09/06/cedaw-general-recommendation-35-on-violence-against-women-is-a-significant-step-forward/

Human Trafficking as a Gendered Phenomenon – Part I

This is part 1 of a two-part post on human trafficking as a gendered phenomenon. In this first part we provide a brief contextualisation to the issue and introduce our recently published article examining the relationship between the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and human trafficking. In the second post, we take a historical look at how the issue of trafficking became divorced from the Committee’s work on violence against women.

Trafficking in human beings is a gendered phenomenon.[1] An estimated 79% of all detected trafficking victims are women and children and traffickers are ‘overwhelmingly male’.[2] As the former Special Rapporteur on Violence against Women, its Causes and Consequences (Special Rapporteur on VAWG) commented in her 15 year review of the mandate, human trafficking is one of the major areas of concern with regards to violence against women (alongside domestic violence, sexual violence in conflict and reproductive rights violations).[3]  The Special Rapporteur on VAWG commented that there has been a marked shift on policy in this area from a ‘prostitution framework’ to a framework which places human rights at the centre of the debate. The Declaration on Violence against Women (DEVAW) confirms this view and recognizes human trafficking as a form of violence against women (Article 2(b)). Further, violence against women has now been recognized as a form of discrimination against women.[4] It is therefore clear that human trafficking is a form of violence and discrimination against women.

More recently, trafficking has been recognised as one of the main forms of violence that women face in the context of migration.[5] Trafficked women and girls often face different forms of gender-based violence such as sexual violence, rape, violation of their reproductive rights, and slavery both in destination and during their trip. Trafficking may constitute torture, crimes against humanity, and war crimes, and it has been identified as a threat to international peace and security by the Security Council (S/RES/2331 (2016)). States of origin, transit, and destination have obligations to prevent trafficking, protect victims (within their territory and from refoulement to a country where there is a risk of torture or cruel, inhuman or degrading treatment or punishment, including the risk of re-trafficking), and to prosecute traffickers. For States to comply with these obligations, victims must be properly identified and identification proceedings must be put in place at strategic points on migration routes and access to asylum proceedings must be granted.

In practice, much remains to be done to implement a human rights and a gender approach to trafficking that can provide justice to those who have suffered violations of their rights due to human trafficking for sexual exploitation, forced labour and other forms of exploitation, slavery and servitude. Most States aim to combat human trafficking from a migrant model a criminal justice perspective and more recently a security approach, thus neglecting the rights of trafficking victims.

In our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective”, we argue that CEDAW is an important human rights instrument in the fight against trafficking in human beings. By way of brief introduction, the Convention is an international human rights treaty dedicated to women and girls. It has been described as ‘the definitive international legal instrument requiring respect for and observance of the human rights of women.[6] At the core of the Women’s Convention is the eradication of discrimination against women and States parties to the Convention accept wide-ranging obligations to promote equality in all spheres of life.[7]

Trafficking is expressly prohibited under CEDAW in Article 6, which mandates states to take all appropriate measures to supress trafficking and the exploitation of prostitution. We argued that given the disproportionate number of women and girls who are trafficked for the purposes of sexual exploitation and forced labour, the Convention is a valuable instrument, contextualising trafficking in the context of structural inequality, violence and discrimination. Further, the Committee’s General Recommendation No.30 and General Recommendation No. 35 point to some of the underlying factos which make women vulnerable to being trafficked including conflict, extractive industries, global supply chains and natural disasters. Significantly no State party has entered a reservation to Article 6.

However, Article 6 does not define the terms trafficking and exploitation of prostitution and the scope and contours of the obligation remain uncertain. Through an analysis of the Committee’s jurisprudence, we found that the Committee has yet to find a violation of Article 6 of the Convention finding all cases pleading Article 6 inadmissible. Further, the Committee has yet to draft a specific general recommendation on Article 6 which seems to be a glaring omission. CEDAW should make good its promise and provide substantive guidance on the scope of Article 6 of the Convention and States obligations to suppress and tackle trafficking. We argue that this is especially necessary given the lack of gender and structural analysis of trafficking by other regional and international courts and bodies and the brevity with which trafficking is dealt with in General Recommendation No 35 on violence against women.

[1] The Inter-Agency Coordination Group against Trafficking in Persons. ‘The gender dimensions of human trafficking’, Issue Brief #4, 2017.

[2] The UNODC Global Report on Trafficking in Persons 2016 notes that an increasing number of men have been detected as trafficking victims, United Nations Publication. Available at www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf

[3] 15 years of The United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, available at www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf

[4] General Recommendation No. 35 (CEDAW) see paragraph 1 and 7. Opuz v Turkey (2010) 50 EHRR 28.

[5] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on Migration-Related Torture and Ill-Treatment, February 2018, A/HRC/37/50, available at www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf

[6] Rebecca Cook ‘Reservations to the Convention on the Elimination of all Forms of Discrimination against Women’ 30 Virginia J Intl’l Law (1990) 643, at 643.

[7] Andrew Byrnes and Marsha A. Freeman ‘The Impact of the CEDAW Convention: Paths to Equality A Study for the World Bank’ University of New South Wales Faculty of Law Research Series 2012, paper 7.

The Masterpiece Cake Shop v. Colorado Civil Rights Commission: Protecting Discrimination in the Marketplace?

On June 4, 2018, the Supreme Court of United States of America decided that the freedom to express religious beliefs would trump the right to equality. The case decided was simple – the owner of Masterpiece Cake Shop, Mr. Jack Phillips, refused to make a wedding cake for a same sex couple on religious grounds. The couple, Mr. Craig and Mr. Mullins protested against this discriminatory action and complained to the Colorado Civil Rights Commission. While the Commission decided in their favour, the Supreme Court did not, stating that the Commission’s decision negated Mr. Phillips’ rights under the First Amendment. Although seemingly straightforward, this case was never just about a wedding cake. It is about the right of individuals to be treated equally irrespective of their sexual orientation. In this blog, we examine the Court’s decision, amidst the protections afforded to LGBTI rights under international human rights law.

According to Mr. Phillips, making cakes is an expressive statement and a manifestation of  his religious beliefs. Therefore, although the case involves aspects of free exercise of religion, the primary submission was regarding free speech as protected by the First Amendment. According to him, the Colorado Commission had in the past offered ‘some latitude’ to cake makers who refused to put messages they considered offensive. The Commission therefore should have allowed Mr. Phillips to refuse to make a cake against his ideological stance. To be forced to create a cake for an event which was fundamentally against his religious beliefs, was in fact forcing him to endorse a particular view. Mr. Phillips considered this to be an affront  to his constitutional rights.

The Colorado Commission claimed that the Colorado Anti-Discrimination Act (CADA) prohibits discrimination by ‘public accomodations’ on the basis of race, sex, marital status or sexual orientation. The term ‘public accommodations’ includes any place of business engaged in any sales or services to the public, and specifically excludes churches, synagogues and mosques or any other place principally used for religious purposes. Further, the ‘latitude’ offered to cake makers in previous cases was not comparable to the present case, as it was not one particular message that Mr. Phillips refused to put – rather it was any cake for a homosexual wedding. Further, prior refusals by cake makers were also in sync with the CADA, as the cake makers had refused to put messages which demeaned gay persons. Finally, it was submitted that religion and religious beliefs cannot be carried to the public sphere, as is evident from the specific exclusion of religious places under ‘public accommodation’ in the CADA.

The Commission, first, refused to consider cake-making as a form of free speech, and second, held that the act of cake making did not force Mr. Phillips to adhere to an ideological viewpoint. Considering whether it was a free exercise of religion, the Commission held that CADA was a valid law of general applicability and therefore, did not violate the Free Exercise Clause. The Commission held that using the defense of religious beliefs for discriminating against a group, and even drew parallels to slavery and the holocaust. Considering such a defense to be despicable, the Commission passed a cease and desist order against Mr. Phillips, requiring him to stop discriminating against same sex couples by not selling what he would have sold to a heterosexual couple.

In the Supreme Court, the main focus was on the Commission’s actions as expressing a clear hostility against a religion, thereby compromising the ‘respectful consideration to which Phillips was entitled’. Centering the discussion on the constitutional prohibition on religious hostility, it overturned the ruling based on bias, without delving into the more controversial debate of religious freedom versus non-discrimination. It tactfully skirted the broader question of whether a business can refuse to serve gay people, saying this “must await further elaboration”. However, the omission to decide this question of law now may be interpreted by businesses to openly discriminate. Although it has been opined that the ruling is narrow, it is now evident that the battle for LGBT rights has merely shifted from the ‘altar to the cash register’, and the court has avoided any concrete protection against this discrimination. The Court has left several crucial questions unanswered, including the one most pertinent- if a gay couple goes to Masterpiece cake shop today, would Mr Phillips still have the right to refuse them their wedding cake? It is difficult to answer this from the Court’s ruling.

This is also worrisome when viewed in light of international human rights protections against discrimination based on sexual orientation. UN Treaty Bodies have reaffirmed regularly that sexual orientation is included among prohibited grounds of discrimination. This is no longer limited to a negative duty on the state to abstain from discrimination, rather, also imposes a positive obligation to protect from discrimination by third parties. For instance, the UN office of the High Commissioner, notes that without national laws that prohibit discrimination by third parties on grounds of sexual orientation, everyday discriminatory treatment continues unchecked, without any recourse to those affected. It identifies a specific obligation on States to prohibit such discrimination by enacting legislation and even providing education and training  to prevent discrimination and stigmatization. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, noting how religious beliefs often have a compounding effect on discrimination faced by LGBT individuuals,  identifies obligations upon states to take appropriate measures to prevent discrimination based on sexual orientation in both public and private spheres (Principle 2). The Yogakarta +10, expanding on these, requires States to identify the nature and extent of attitudes and practices that perpetuate discrimination and report on the measures undertaken, and their effectiveness (Principle 30).

In today’s market economy, businesses play a vital role in the socio-economic polity. It has become a social institution, like any other, access to which is key to fulfilling essential functions and maintaining one’s standard of living. Recognising their influence and significance, the UNHRC in 2017 developed Standards of Conduct for business to tackle discrimination against LGBTI people, where it specifically identifies a duty to prevent discrimination in the marketplace, respecting the human rights of customers.

Hindering access on the grounds of personal religious beliefs, despite a statute forbidding it,  will not only affect crucial capabilities in a market-based economy, but will also be at odds with fundamental human rights protections. Today’s cake, may translate into other goods and services in the future, which may also be denied on the grounds of religious beliefs. The Colorado Commission’s contempt for a defense couched in religious beliefs was not to negate the sincerity of the belief itself, rather, it was for the apathy and discrimination that were the consequences of the belief. A robust non-discrimination framework to protect against third-party actions thus becomes essential.

 

Law as a Method of Destruction: Dismantling Indigenous Land Rights and Protective Institutions in Brazil

Reporting on her 2016 official visit to Brazil, Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli-Corpuz declared that “[t]oday, indigenous peoples face more profound risks than at any time since the adoption of the Constitution in 1988.”[1] Brazil’s largest indigenous group, the Guaraní-Kaiowá, have and continue to suffer large-scale displacement and dispossession from their ancestral lands in the state of Mato Grosso do Sul. Encroaching large-scale agribusinesses and private landowners grab lands, transform forests into farms, and reap huge profits from agriculture exports produced on Guaraní lands. At the same time, farmers entangle indigenous representatives in decades-long legal battles over the land’s title to stave off official demarcation of lands as indigenous. Some demarcation disputes have resulted in violent clashes between private farmers, public officials and indigenous peoples.

The Guaraní-Kaiowá communities experience devastating consequences as a result of the land grabs and the ongoing violence of state-sponsored settler colonialism. To the Guaraní-Kaiowá, “land is life;” without the land, communities lack access to adequate food, water, shelter, healthcare, education and other necessities. In addition to skyrocketing suicide and childhood starvation rates, Guaraní communities are targets of violent attacks, forced removals, and dozens of assassinations of leadership. Alarmingly, the Guaraní-Kaiowá’s population has dropped from 400,000 to only 50,000 people, motivating community leaders to call this protracted conflict a “silent genocide.”[2]

As in many unfolding processes of mass atrocity, the law has played an integral role in facilitating the systematic destruction of the Guaraní-Kaiowá. Although article 231 of Brazil’s Constitution guarantees indigenous groups the collective rights of return to—and occupation and use of—their traditional lands in line with international obligations, public and private sector interests have prevented the Guaraní-Kaiowá from realizing these rights. According to Tauli-Corpuz, the law has been used to obstruct, rather than to guarantee, indigenous peoples rights in Brazil.[3] The agribusiness sector wields enormous political power in Brazil, and the ruralista caucus (“Agricultural Parliamentary Group,” or “FPA”) has used its influence to roll back not only environmental and food production regulations, but also constitutional guarantees of indigenous peoples to original lands. Indeed, the FPA supports President Michel Temer’s government while funding a massive campaign to all but eliminate indigenous land rights. In direct contravention of its international human rights treaty obligations, the state has enacted laws, passed executive decrees and issued judgments to dismantle protections of ancestral lands and indigenous peoples.

For instance, on July 20, 2017, the President approved Union Attorney General’s Opinion 001/2017, which binds all federal public administrative agencies to limit indigenous rights to demarcation in ways that do not adhere to international treaty obligations or regional human rights jurisprudence. One limitation is the application of the “temporal framework” doctrine (“tese do marco temporal”), a judicial thesis that denies indigenous peoples the right to ancestral lands if the community did not occupy and control those lands at the time the 1988 Brazilian Constitution was promulgated. Given that prior to 1988 most indigenous communities were forcibly removed from their lands in a period of military dictatorship in which the state denied legal capacity to indigenous peoples, such a doctrine severely curtails the constitutional guarantees of indigenous peoples to their original lands. Application of the temporal framework doctrine would affect 748 administrative demarcation processes presently in progress across the country.

Additionally, several proposed bills in Congress further threaten to undo protections of indigenous rights in Brazil. One of the most precarious legislative proposals is Constitutional Amendment Bill 215 (“PEC 215/2000”). If passed, PEC 215/2000 effectively would stop indigenous land demarcations, and would permit new economic and “development” activities, as well as rural settlements, on indigenous lands without free, prior and informed consent of indigenous communities as required under international law.

The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) includes the clearest and most advanced articulations of the FPIC requirement under international law.[4] Although UNDRIP is non-binding, the Declaration serves as a strong, interpretive guide to determine the content and scope of indigenous rights in international law.[5] Located under several articles of the UNDRIP, FPIC again is derived from and grounded in the rights to self-determination, culture and the use of traditional lands, territories and resources.[6] Brazil also is obligated inter alia as state party to the International Labour Organization’s Convention No. 169 (“ILO No. 169”) to uphold these rights.

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Making the Case for Protecting Cultural Heritage under the Alien Tort Statute

On July 29, 1990, Moses Thomas, then-commander of the Special Anti-Terrorist Unit of the Armed Forces of Liberia, ordered his troops to massacre nearly 600 unarmed men, women, and children taking refuge in St. Peter’s Lutheran Church from the country’s civil war. For nearly three decades, Thomas and his forces evaded accountability despite the massacre being one of the most horrific attacks on civilians in the country’s history.

Twenty-eight years later, on February 12, 2018, the Center for Justice and Accountability (CJA) filed a case in U.S. federal court on behalf of four Liberian citizens who survived the church massacre by hiding under church pews and dead bodies while their loved ones were murdered around them.

In the suit, the survivors alleged several claims for war crimes and crimes against humanity under the Alien Tort Statute (ATS), which confers jurisdiction to U.S. federal courts over claims of international law violations brought by non-nationals. In one claim, the plaintiffs allege that Moses Thomas had committed a war crime by intentionally directing attacks against a building dedicated to religion. CJA’s case against Thomas marks the first time such a claim has been brought under the ATS.

The intentional attacking or destruction of religious property—a form of cultural heritage—is as much a human rights violation as the physical destruction of a people. Nonetheless, this form of violence is on the rise throughout the world, occurring both in times of armed conflict and peace, systematically and sporadically.

In the last decade alone, Sufi religious and historic sites have been destroyed and graves desecrated in Libya; cultural and religious sites, artifacts, and manuscripts have been destroyed during the occupation of northern Mali; temples, monasteries, shrines, and millenniums-old sites, such as Palmyra, have been destroyed in the Syrian Arab Republic; Coptic churches and monasteries in Egypt, Jewish sites in Tunisia, and hundreds of shrines belonging to the Sufi sect of Islam across Northern Africa have all been targeted and destroyed. This list of incidents—incidents that have had a profound effect on cultural and religious communities globally—is in no way exhaustive.

Such deliberate destruction of cultural heritage violates numerous human rights, including the right to freedom of thought, conscience, and religion, and the freedom to take part in cultural life. Intentionally attacking cultural and religious property also is in violation of international humanitarian law—though the targeted nature of recent attacks shows, in many instances, that what once were protected structures during armed conflict have now become strategic military targets. Such acts of destruction additionally violate many States’ treaty obligations under several binding international legal documents.

Despite the extensive legal framework aimed at protecting such cultural and religious property, accountability for their destruction is slow or wholly unpursued. CJA’s case may thus lay the groundwork for one viable avenue to change this tide. The question, however, is whether the claim alleged by CJA for the destruction of religious property meets the legal thresholds for cognizability under the ATS established by the U.S. Supreme Court. Continue reading

Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.

Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”

According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.

This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.

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