Archive | International Human Rights Law

Telling Interview with the Director of Amnesty Israel

Via Avi Bell, here’s a fascinating interview with Itai Epstein, Director of Amnesty International in Israel.

The interviewer asks some fairly sharp questions, and he gets answers filled with addled logic that amount to, “Whatever Israel does, Amnesty is still going to say it was acting illegally/violating human rights.” Here’s an excerpt (but read the whole thing), in which the interviewer asks Epstein what Israel needs to do before Amnesty will acknowledge that Israel is not “occupying” Gaza. The short answer is there’s nothing Israel can do, only steps Israel could take toward that goal, but whatever Israel does there will still be “other components related to agreements of the international community” whatever that means.

Q. What is required of Israel to stop it from being an occupying force under Amnesty’s definition?

A. That there will be another sovereign power and that the border crossings to Gaza not be under Israeli control. That’s the meaning of occupation, there’s no other sovereign power there, there’s no control over the border crossings for free movement of people and goods and that’s why Gaza is under occupation.

Q. Is an exit by the Navy from Gaza’s waters an end to the occupation?

A. No.

Q. Is opening the border crossings with Israel ending the occupation?

A. That’s a step towards ending the occupation….

Q. So what actions must Israel take? You say that the occupation ends if Israel opens the crossings, so if the occupation ends, Israel needs to close the borders since Gaza is defined as an enemy state. There’s a logical contradiction here.

A. I don’t understand where the contradiction is.

Q. The border between Israel and Lebanon is closed since Lebanon is an enemy state. You’re claiming that Israel needs to open the borders to Gaza and then the occupation [...]

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Foreign Sovereign Immunities Act v Alien Tort Statute?

Sounds like Alien v Predator.  Well, the Supreme Court might have taken up that question, but in the event, decided not to get involved with it.  My Opinio Juris co-blogger Duncan Hollis explains at OJ.  The case handed down today is Samantar v Yousef.  I concur with Duncan’s takeaway:

For human rights activists, however, the case had real import for the future of litigation under the Alien Tort Statute (ATS) … My own first take, however, is a simple one, namely, that human rights activists should be breathing a huge sigh of relief tonight.  The Court had a chance here to gut the ATS, and it declined to do so.

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Bringing a case against Arizona before the Inter-American Commission on Human Rights

Apparently that is the plan of several Mexican and Arizona legislators. (Original story in Spanish from El Semanario here.)

The Inter-American Commission on Human Rights is the Oranization of American States administrative body responsible for hemispheric human rights enforcement. Generally speaking, if the Commission finds that the government has violated human rights, the Commission attempts to resolve the matter by issuing recommendations to that the government. However, if the Commission considers the case unusually important, or if the government obdurately ignores the recommendations, the Commission can bring the case to the Inter-American Court of Human Rights.

That Court, ocated in San José, Costa Rica, has the duty is to interpret and hear cases on the American Convention on Human Rights. Significantly, however, the Convention has only been ratified by 24 of 35 OAS members, and the United States is not among the ratifiers.

Accordingly, the United States is not currently subject to the Court’s “adjudicatory function.” (In an adjuticatory function case, the defendant government can be ordered to pay money, or to do particular things). The adjuticatory function is available only if the defendant government has accepted the Court’s jurisdiction, and has ratified the American Convention on Human Rights. A state can accept the Court’s jurisdiction on a case-by-case basis, or can submit to blanket jurisdiction.

Besides adjudicating cases, the Inter-American Court can also act in an Advisory function. It does so when asked by an OAS agency or OAS member state. In the Advisory role, the Court can interpret the American Convention on Human Rights, or any other treaty which applies to human rights in the Americas. The Court can also advise whether existing or proposed domestic laws are compatible with those treaties.

Thus, unless the Senate ratified the American Convention on Human Rights and the US government [...]

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Taking the Yglesias Challenge on Human Rights Watch

Matthew Yglesias writes of Benjamin Birnbaum’s piece on HRW in The New Republic:

What I had in mind is that I don’t see what there is to rebut in the piece. As we’ve known for a while, some folks don’t like it that Human Rights Watch criticizes Israel. Some of those people aired their grievances to Birnbaum. But he doesn’t offer any new facts or new analysis or have any relevant expertise in international law. The result is a fairly dull narrative piece detailing how some HRW folks fell out with some other HRW folks over their disagreements about Israel. The piece itself is responsibly written but a bit confusing and doesn’t seem to advance any argument at all, much less a devastating one.

Well, here is my one-line summary of what we learn from the Birnbaum article (which just reinforces what those of us who were paying attention already knew): “HRW’s Middle East division is run by individuals who purport to be human rights activists with no political agenda, but who are in fact far left-wing anti-Israel ideologues who are extremely intolerant of any criticism from within or without the organization.” Birnbaum provides ample evidence on these points, some of which is reviewed here.

I think Sarah Leah Whitson’s and Joe Stork’s (the director and deputy-director of HRW’s M.E. division) bona-fides as far left-wing anti-Israel ideologues masquerading as neutral human rights advocates are well-established by now, but if Yglesias has some new information– e.g., that Whitson didn’t really gush over Hezbollah supporter Norman Finkelstein’s “brilliant mind and generous spirit,” or that she really doesn’t think that, like Finkelstein, the “focus” of her “life’s work” is “Israeli abuses”–let him rebut away.

UPDATE: And, I can’t resist this, it’s priceless. Ygelsias writes of Birnbaum, “But he doesn’t offer any new facts [...]

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A Follow-on Drone Hearing

The House Subcommittee on National Security and Foreign Affairs, chaired by Rep. John Tierney, held a second hearing (Wednesday, April 28, 2010), once again on the topic of drone warfare. The first, held back on March 23, was focused on the technology of UAVs; this follow-up hearing was specifically about targeted killing and drone warfare. All of the witnesses this time around were senior international law professors: Mary-Ellen O’Connell (Notre Dame), William Banks (Syracuse), David Glazier (Loyola Los Angeles), and KA.

(I’m traveling, so I’ll post the hearing information when I get home; the AP has a reasonably good summary (considering the difficulty of reporting on four law professors with quite different views politely agreeing and disagreeing with each other …!). The ACLU submitted a written statement (just downloaded but not yet read).)

We four professors represented a pretty good range of the available expert views, and in that regard particularly I think this was a useful hearing. In part, it sought to figure out what this debate meant following DOS Legal Adviser Harold Koh’s statement on drones at the ASIL meeting on March 25. Having been a sharp critic of the administration, or anyway its senior lawyers, including in the first drone hearing, for not stepping up to the plate on this topic, I applaud both the fact of the Legal Adviser’s public statement as well as the substance of his statement.

The pivotal issue – not surprisingly, for those following these debates – is the role of the CIA, whether it takes a role at all and, in particular, where it takes a role. The positions presented ranged from:

  • Professor O’Connell’s well-known view that the participation of the CIA is and always is an international crime;
  • Professor Glazier’s position that the targets who fit within the AUMF
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Birnbaum on Human Rights Watch and Israel

Benjamin Birnbaum’s investigative piece for The New Republic on Human Rights Watch and Israel is now up. The piece mentions, but does not dwell on, the various scandals that engulfed HRW last year—the fundraising trip to Saudi Arabia in which HRW Middle East director Sarah Leah Whitson invoked the organization’s hostility to Israel and the “pro-Israel lobby”; reports that deputy director Joe Stork’s prior “human rights” background primarily consisted of editing and writing for a radical left, anti-Israel publication; and the revelation that HRW military analyst Marc Garlasco was an avid collector of Nazi memorabilia.

Instead, the piece focuses on the longstanding conflicts within HRW regarding its Israel-related activities that eventually led founder Richard Bernstein to denounce HRW in an op-ed in the New York Times last Fall.

Much of the piece will be of great interest to both donors and critics of HRW, but will strike those without a deep interest in HRW as so much inside baseball. Nevertheless, there are several newsworthy nuggets within the article:

(1) Whitson’s hostility to Israel. Birnbaum quotes an anonymous insider for what should by now be obvious: she “has no sympathy for the Israeli side” and “has a lot of personal identification [fwiw, her Armenian mother was born in East Jerusalem] with the Palestinian cause.” Birnbaum backs this up with a few telling quotes from Whitson.

(a) Whitson recently professed HRW’s neutrality on the Hamas-Israel conflict to a Moroccan newspaper. But then she added, “Of course, no one can deny that the pain and destruction that Israel causes cannot be compared to what Hamas is doing.” A more objective observer might point that whatever “pain and destruction” Israel is leveling on Gaza is itself Hamas’s fault, because Hamas has chosen to live in a state of war with Israel, whereas Israel

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An Eminently Sound Approach to (Supposed) International Human Rights Norms, from the Ninth Circuit

From Serra v. Lapin (9th Cir. Apr. 9, 2010) (Clifton, J., joined by Kozinski, C.J., and Wallace, J.) (some paragraph breaks added):

Current and former federal prisoners allege that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law…. Plaintiffs earned between $19.00 and $145.00 per month at rates as low as nineteen cents per hour. Plaintiffs contend that by paying them such low wages, Defendants … violated Plaintiffs’ rights under the Fifth Amendment to the United States Constitution; articles 7 through 9 of the International Covenant on Civil and Political Rights (“ICCPR”); a U.N. document entitled “Standard Minimum Rules for the Treatment of Prisoners;” and the law of nations.

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“Garzon and the Trouble with International Law”

Onetime VC contributor Eric Posner has a WSJ op-ed on the indictment of Judge Baltasar Garzón in Spain and what this episode should teach us about the efforts to assert universal jurisdiction over alleged atrocities that occurred within the sovereignty of other nations.  Here’s a taste:

Universal jurisdiction arose centuries ago to give states a means for fighting pirates. In recent years, idealistic lawyers have tried to convert it into an all-purpose instrument for promoting international justice. But supporters of this law turned a blind eye to the diverse and often incompatible notions of justice that exist across countries. Everyone can agree to condemn arbitrary detention, for example, but in practice people disagree about what the term means. Whether an amnesty should be issued so that a transition can be made to democracy (as in Chile or as in Spain), or exceptions to some rules should be made for the sake of national security are not questions for a foreign judge.

When Mr. Garzon indicted Pinochet, riots erupted in Chile. No matter, thundered the champions of international law: Let justice be done though the heavens fall. But when Mr. Garzon turned his sights on his own country, the gates of justice slammed shut. Spain’s establishment was not willing to risk unraveling its own transition to democracy, and rightly so. But then on what grounds should Spanish courts pass judgment on Chile?

Posner also explains why creation of the International Criminal Court cannot cure the problems with efforts by national judges to declare universal jurisdiction over acts that occurred within other nations.  The ICC, Posner says, is an “inconsequential institution” that must make “inherently political” decisions about which cases to pursue, and which will be “squashed like a bug” if it ever goes after a powerful country.

One cannot solve the

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Judge Baltazar Garzón Indicted

Spanish judge Baltazar Garzón rose to fame in 1998 when he issued an arrest warrant for former Chilean dictator Augusto Pinochet for the alleged murder and torture of Spanish citizens in Chile.  Such use of universal jurisdiction was unprecedented — and it was only the beginning.  Since then, Judge Garzón has investigated Bush Administration officials for alleged crimes against humanity and indicted Osama Bin Laden.  Yet as the AP reports, Judge Garzón has been indicted himself for ignoring a 1977 amnesty law and exceeding his jurisdiction in his investigation of the alleged atrocities committed by Gen. Francisco Franco and his allies during the Spanish Civil War and under the Franco regime.  The NYT thinks this an outrage, while the WSJ thinks it is poetic justice. Overlawyered’s Walter Olson also comments here.

UPDATE: At Opinio Juris, Julian Ku says this is a “big deal.”  More here. [...]

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Remarkable Window into Amnesty International’s Worldview

Despite widespread condemnation from many of its own allies and fellow-travelers (e.g.), Amnesty International continues to have no compunctions about its close association with the pro-Taleban former Guantanomo detainee Moazzam Begg. According to Amnesty Secretary General Claudio Cordone, Amnesty may disagree with Begg on the “role of jihad in self-defense,” but otherwise Begg’s support of the Taleban raises no significant human rights issues.

Apparently, however, Cordone has lost some sleep over Amnesty’s cooperation with the Catholic Church in opposition to the death penalty:

There are victims with whom we would not associate, while unreservedly campaigning against any abuses of their rights. For example, we denounced the waterboarding of Khaled Sheikh Muhammad, the Guantánamo detainee credited with the 9/11 and other atrocities. But we would never share a platform with someone like him who openly espouses an ideology predicated on hatred and the killing of civilians – in short, views that are clearly antithetical to human rights. The answer in this case is easy.

But in other cases the answer is not easy. For example, should we not work against the death penalty with an influential actor like the Catholic Church because we disagree with their stand on women’s reproductive right and homosexuality? There are valid arguments for and against. We chose to work with the Catholic Church against the death penalty.

Hat tip: NGO Monitor [...]

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“Nazi Scandal Engulfs Human Rights Watch”

That’s the title of an excellent piece today in the Times of London. Despite the lurid title, the piece is actually a tough-but-fair overview of the various controversies surrounding HRW’s coverage of the Middle East.

A taste:

Some conflict zones get much more coverage than others. For instance, HRW has published five heavily publicised reports on Israel and the Palestinian territories since the January 2009 war.

In 20 years they have published only four reports on the conflict in Indian-controlled Kashmir, for example, even though the conflict has taken at least 80,000 lives in these two decades, and torture and extrajudicial murder have taken place on a vast scale. Perhaps even more tellingly, HRW has not published any report on the postelection violence and repression in Iran more than six months after the event.

When I asked the Middle East director Sarah Leah Whitson if HRW was ever going to release one, she said: “We have a draft, but I’m not sure I want to put one out.” Asked the same question, executive director Kenneth Roth told me that the problem with doing a report on Iran was the difficulty of getting into the country.

I interviewed a human-rights expert at a competing organisation in Washington who did not wish to be named because “we operate in a very small world and it’s not done to criticise other human-rights organisations.” He told me he was “not surprised” that HRW has still not produced a report on the violence in Iran: “They are thinking about how it’s going to be used politically in Washington. And it’s not a priority for them because Iran is just not a bad guy that they are interested in highlighting. Their hearts are not in it. Let’s face it, the thing that really excites them is

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Harold Koh Statements on Drone Warfare at ASIL Tonight

Update:  I have had a chance to watch the video twice – I strongly recommend watching it, as it adds considerable language to the statements below in the press release.  And welcome Instapundit readers and any others.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare – most recently in a Weekly Standard article on exactly that theme, again this week in a sharply worded statement to a House subcommittee hearing, and an Ari Shapiro interview on NPR this morning recorded a a month ago – this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view – that sovereignty and territorial integrity are [...]

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Drone Warfare in House Subcommittee Hearing

Yesterday (Tuesday, March 23, 2010) I was pleased to appear as a witness before the House Subcommittee on National Security and Foreign Affairs, to discuss drone warfare and Unmanned Aerial Vehicles (UAVs).  The list of witnesses is here, along with a link to a webcast (which I can’t seem to open), and links to the witness statements.  I am always fascinated to listen to Brooking’s Peter Singer, author of Wired for War, and the rest of the panel was equally interesting, especially on the technical aspects of UAVs.

I was particularly interested to hear in this session discussion of the many ways in which UAV technology is entering civilian fields – everything from crop dusting to monitoring schools of fish from the sky.  Someone mentioned (but I haven’t verified) that University of Nevada now offers a degree program in UAV control.   My points were fairly removed from much of the rest of the technological or military discussion, being aimed squarely at policy and legal policy concerns.  In my oral statement, I emphasized the following:

  • The Obama administration has embraced drone warfare, but its lawyers have not caught up; presumably they have private concluded that the several drone warfare programs underway are legal, but it is not a good idea to keep the rationales secret.  Not, at least, with a program in Pakistan that is only a matter of official denial, not secret.  It leaves the President and operations people on down hanging out there exposed.
  • The drone warfare campaign embraced most thoroughly as a strategic matter – correctly, in my view – by the senior administration officials starting with the President is not the “hot battlefield” use of drones, in which they are essentially a substitute air support weapon for a manned system.  It is, instead, the
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Response from ACLU’s Jonathan Manes on Drones and US Forces

Jonathan Manes, the ACLU lawyer whose work and presentations I have cited a couple of times in posts here at Volokh, and someone for whom, despite some fundamental agreements, I have great respect and like very much, has responded with the following letter.  He has given me permission to post it here.  The most important issue is the question of whether I have correctly represented his or the ACLU’s position on the question whether a problem with drones is that they make resort to force by the US too easy.

I don’t believe that it’s proper for me to editorialize on my views here, when the post is really to allow a “letter to the editor,” so I will simply post the letter below; I’m also not opening it to comments. I encourage you to read the FOIA request that Jonathan drafted on behalf of the ACLU (as well as review, if you are very ambitious, the panel discussion at Harvard – although I agree entirely (as I remarked with a similarly impromptu discussion by Harold Koh) that one should not hold people to the strict words of an impromptu panel discussion, and if Jonathan feels that I’ve played “gotcha” unfairly, then my apologies). (I am stealing time in a meeting – one of the deans will shortly glare at me, with good reason – and I will have to provide a couple of background links later, including a couple in Jonathan’s letter that I can’t reproduce at this moment.)

One thing I should add, though, is that whatever Jonathan and I do disagree about, we agree altogether on the need of the US government to offer a legal rationale for the practice.  As I said in my last post, CIA director Panetta’s assertion that the program is legal does [...]

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Iran and the Shortcomings of International Human Rights Law

Hadi Ghaemi and Aaron Rhodes of the International Campaign for Human Rights in Iran urge the United Nations Human Rights Council to take a stand against the blatant repression undertaken by the Iranian government. But they acknowledge that so far the UN has done more to support the Iranian government than its victims:

The new session of the U.N. Human Rights Council began on March 1. A failure of the world’s most influential human rights body to deal with the abuse of human rights in Iran will be interpreted by Tehran as a green light for the government’s brutal policies that could result in more executions of political prisoners….

While atrocities since June have horrified people around the world, leading to demonstrations by more than 50,000 people in 110 cities last summer, Iran seems, astonishingly, to be strengthening its standing in the Human Rights Council.

The 47 member states have shown no willingness to hold a special session, as many international human rights experts have recommended, nor have they supported the idea of a special U.N. envoy to look into the situation, and to press Iran to abide by its commitments….

The failure of the Human Rights Council to take serious action to condemn Iran’s human rights abuses, and the election of Iran to the Human Rights Council itself, will be deeply disillusioning for the reform and human rights movement in Iran. It could destroy their faith in the international human rights system, for which many have sacrificed their freedom and security, and for which many have died. It will give legitimacy to hanging political prisoners, and more will be hanged.

But this issue is not just about Iran. It is about the capacity of the U.N. system to protect human rights. If Iran’s grave abuses are ignored and

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