Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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International Law, the Eighth Amendment, and the Death Penalty

Christian Kim

Should international views be given greater consideration in the interpretation of the evolving standards of the Eighth Amendment?

The United States has been pressured by the international community for its stance on capital punishment.  This pressure has recently been reignited with the state of Arkansas announcing the execution of eight death row inmates in the span of ten days at the end of the month.[1]  Although historically many nations exercised capital punishment, the majority of modern day states have either curbed or completely outlawed capital punishment.[2]   In the case of S v. Kaywanyane and Another, South Africa’s highest court ruled that, “[e]veryone, including the most abominable of human beings, has a right to life, and capital punishment is therefore unconstitutional.”[3]  Canada, after a five year moratorium, passed the C-84 bill, which abolished the death penalty.[4]  As one of the prime leaders in the world for human rights movements, the international community has been puzzled by the United States’ archaic stance on capital punishment.  Despite attempts to kick outside influence from our courts, we have seen such international influence creeping in starting as early as Paquete Habana.  Even the heated topic of capital punishment has not been immune to international influence.

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In Thompson v. Oklahoma[5], the Supreme Court found that the execution of an individual under the age of 16 would be a cruel and unusual punishment under the 8th Amendment’s contemporary standards of decency.  The plurality talked about the “evolving standards of decency,” which was stated in Trop v. Dulles as an indicator of a “maturing society.”[6]  To reach this evolving standard of decency, the court stated that it “is also consistent with the views expressed by… other nations that share the Anglo-American heritage” and additionally, “by the leading members of the Western European Community.”[7]  The court even referred to three human rights treaties that prohibit juvenile capital punishment in the footnotes, specifically: Art. 6(5) of the International Covenant on Civil and Political Rights, Art. 4(5) of the American Convention on Human Rights, and Art. 68 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.[8]

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In Roper v. Simmons[9], the Supreme Court concluded that capital punishment for a juvenile is unconstitutional.  While the court elaborated that international views “do not dictate the outcome of our Eighth Amendment inquiry” the court mentioned that the international community is “instructive for its interpretation of the Eight Amendment’s prohibition of ‘cruel and unusual punishments.’”[10]  The court looked at various statistics in the world to point out that “only seven countries other than the United States have executed juvenile offenders since 1990.”[11]

In Atkins v. Virginia[12], the Supreme Court ruled that imposing the death penalty on mentally handicapped individuals would be a cruel and unusual punishment under the 8th Amendment.  Even though the court relied on its conclusion based on only domestic findings, the majority mentioned in a footnote that the internationally community opposes capital punishment for mentally handicapped individuals[13]

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To determine what constitutes cruel and unusual under the Eighth Amendment, our courts placed an emphasis on the “evolving standards” in our nation.  Although there has been a lot of opposition on the use of international views to determine our constitutional rights, it is not a novel practice to have our courts cite international laws or sources, as shown throughout history.  Through transnational seminars and conferences, legal dialogues between our judges and judges from around the world are increasingly common.  From the cases observed here, the international views our courts referenced were not contrary to our values.  In fact, our courts aligned with foreign views which brings up the idea that there is an international consensus against certain penal practices.  Foreign law and international law, are still very persuasive laws.

It is time for the United States to re-examine our capital punishment policies with the international community’s views as a persuasive source.  Even though our nation has shifted in the same direction as these abolitionist countries, the United States is in the minority where capital punishment is acceptable.  Our nation joins a small group of countries who are regularly seen as one of the biggest human right violators, such as North Korea, Saudi Arabia, Iraq, China, Iran, and Egypt.  Our capital punishment policy has been nothing but a failed project on criminal deterrence and its continued use is an international embarrassment.  When our officials criticize other nations that have terrible human rights records, those countries deflect our criticisms and point out our archaic retentionist policies.[14]  As a result, it would be in our nation’s best interest to re-examine the death penalty, with the international view as a persuasive source, and to persuade the Arkansas governor to halt the execution of these eight individuals, in light of the evolving standards of decency.

 

[1] http://www.upi.com/Top_News/US/2017/03/03/Death-penalty-opponents-outraged-at-Arkansas-assembly-line-of-executions/4681488566121/

[2] https://www.amnesty.org/en/what-we-do/death-penalty/

[3] http://www.nytimes.com/1995/06/07/world/south-africa-s-supreme-court-abolishes-death-penalty.html

[4] http://www.csc-scc.gc.ca/text/pblct/rht-drt/08-eng.shtml

[5] Thompson v. Oklahoma, 487 U.S. 815, 830 (1988).

[6] Id.

[7] Id.

[8] Id. at 831.

[9] Roper v. Simmons, 543 U.S. 551 (2005).

[10] Id. at 575

[11] Id. at 577.

[12] Atkins v. Virginia, 536 U.S. 304 (2002).

[13] Id. at 316.

[14] www.nytimes.com/2001/06/10/world/veteran-us-envoys-seek-end-to-executions-of-retarded.html.

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No Justice = Get Lynched?!

Kia Roberts-Warren

When a community feels that there is no justice, what should they do? In the United States, citizens’ have taken to protesting. We’ve had the Civil Rights Movement, Women’s Liberation Movement, Black Lives Matter, and the recent Women’s March. However, what happens when a country’s citizens are constantly disappointed in their government and police authority? When they have lost trust and faith in the judicial system? Traditionally, in many Latin American countries people have taken up vigilante justice. However, this vigilante justice is not a man/woman dressed in a costume fighting to keep their neighborhood safe; it is lynchings. Lynchings are acts of violence against individuals that usually result in death.[1] These lynchings are not being committed by criminals, nor crazed individuals, but by normal citizens/communities that come together as vigilante groups.[2] Lynchings started back in 2007 in many Latin American countries.

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Serving Some Good Old Fashion Vigilante Lynchings

Today, it has been reported that Guatemala, Bolivia, and Peru are dealing with an increase of vigilante lynchings.[3] Also, the Côte d’Ivoire has seen a rise in vigilante lynchings.[4] The victims are usually tortured, in order to force them to reveal the names of any accomplices.[5] They are beaten, mutilated, stoned, shot, or burned alive before being hung.[6] These victims are taken after being suspected of committing a crime, with many  victims  taken from home or the workplace.[7] In Latin America, men are mainly the victims but there have been a few cases involving women and children.[8] However, in the Côte d’Ivoire, children are mainly the victims due to their association in street gangs.[9]

In countries like Bolivia and Guatemala, there has been an argument that vigilante lynchings can be linked to indigenous people (there is a high population of indigenous people). However, many experts have attacked this argument because “indigenous justice” rarely includes death as a punishment.[11] ItIndigenous justice tends to focus on “righting the wrong” committed by the wrongdoer through manual labor and in extreme cases expulsion from the community.[12]

Cash Me Ousside, How Bow Dah?

In Guatemala, for example, from 2008 to October 2015, 297 died and 1,043 people were injured from lynchings.[13] The National Civil Police (PNC) reported that, of the 84 people who died at the hands of lynch mobsfrom January 2012 to May 2015, 76 were men and 8 were women.[14] Often vigilante lynchings are linked to the corruption and ineptitude of the police authorities.[15] A robbery, for example, often illicits no response or slow and ineffective response from the authorities and, therefore, the crime is never solved.[16] In the Côte d’Ivoire, violent crimes committed by street gangs have sparked vigilante lynchings of suspects.[17] In Bolivia, impunity of government officials responsible for human rights violations are the reason for vigilante lynchings.[18] In March 2016, a mentally disabled man was burned then lynched because a mob had suspected him to be a criminal.[19]

One major  problem with vigilante lynchings is that often many of the victims are innocent. For example, in Bolivia, a 54-year-old grave worker was mistaken for a grave robber by five Bolivian men visiting a grave.[20] He was tied, beaten, and hung, and, by the time he arrived at the hospital, he was declared dead.[21] In Peru, a local prosecutor’s son, was beaten, burned, and hung to death after being mistaken for a thief.[22]

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What Can Be Done?

A big problem is that lynchings usually go unpunished. This is due to the many different actors involved and the code of silence the community takes once the lynching is done.[23] In Bolivia, the prosecutor’s office is still investigating 12 lynchings from 2013.[24] There have only been a minimal number of lynching cases that have been resolved by the judicial system.[25] The idea of “People’s Justice” seems to control. [26]  Therefore, the government must do more to restore the people’s confidence that the authorities and judicial system can and will resolve crimes.

Guatemala recently submitted its country report to the Inter-American Commission for Human Rights. The Commission’s recommendations were underwhelming and not very helpful. It stated:

“The Commission urges the State to adopt a comprehensive policy for preventing   and combating lynchings. The State must provide a prompt, coordinated and interinstitutional response in places where lynchings could be committed. There must be a rapprochement between the State and the communities, and the Government must have with a prevention policy, and the political will to enforce it. There must also be collaboration with municipal authorities, traditional indigenous authorities, and the Ombudsman’s Office.”[27]

 

This vague recommendation doesn’t help to guide Guatemala. It is merely a reiteration of things that Guatemala should be doing. The Organization of the American States is a regional legal organization. Its influence and presence could help countries like Guatemala, Peru, and Bolivia and make them more accountable. It would also let the people know that there is somewhere they can put their trust in besides themselves. In the Côte d’Ivoire, the government has taken steps to remove the word “microbe” (“germ”) to describe children in gangs.[28] However, it has not come up with an effective and comprehensive strategy to put this change into effect.

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Alejandra Maria Torres sits bloodied on a street after being beaten, doused with petrol and set on fire during a lynching in Guatemala City

In the case of Latin America, it seems that a more international presence is needed to help reduce corruption and train police authorities in resolving crime. A great way to do this is to use the Organization of the American States since it is a regional organ. The same can be suggested of the African Union with the Côte d’Ivoire. These regional organizations are a part of the international community. Therefore, if they help these countries with vigilante lynchings it gives them more legitimacy and validity, but also helps to promote international law and security.

An example of the Organization of the American States taking lead would be to have the Inter-American Human Rights Court take a case on the vigilante lynchings since a case has yet to go before the court. However, the lynchings are being committed by non-State actors who are not acting under the State’s control or permission. Therefore, police officers who are in the crowd and fail to act can be tried. The police officers are State actors who are failing to act when they have a legal duty to do so. So, the omission of acting would be attributable to the State.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program. 

[1] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[2] Id.

[3] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[4] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire

[5] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[6] Id.

[7] Id.

[8] Id.

[9] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire

[10] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[11] Id.

[12] Id.

[13] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[14] Id.

[15] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[16] Id.

[17] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire

[18] https://www.hrw.org/world-report/2017/country-chapters/bolivia

[19] Id.

[20] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[21] Id.

[22] Id.

[23] https://www.pri.org/stories/2014-01-24/lynching-still-common-practice-across-latin-america

[24] Id.

[25] Id.

[26] http://www.worldcrunch.com/culture-society/lynching-in-latin-america-why-colombia-vigilante-mobs-are-spreading

[27] http://www.oas.org/en/iachr/reports/pdfs/Guatemala2016-en.pdf

[28] https://www.hrw.org/world-report/2017/country-chapters/cote-divoire


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The Bahrain Blues

Elizabeth Hays

Bahrain, its name meaning “two seas,” is a small island nation located on the eastern coastline of Saudi Arabia in the Persian Gulf.[i] Dating back to the time of the Romans, Bahrain was an important trading center.[ii] Centuries later, the Al Khalifa tribe rose to power in 1820 and established a treaty relationship with Great Britain.[iii] Bahrain became an independent state in 1971.[iv] Considered a constitutional monarchy with an elected legislative assembly, Bahrain has been ruled by King Sheikh Hamad bin Isa Al Khalifa since 1999.[v] When he first became Head of State in 1999, King Khalifa released all political prisoners and gave women the right to vote.[vi] Lately, however,  the Bahrain government has been accused of major human rights violations and has seen an increase of low level unrest between security forces and protestors.[vii]

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On February 21st 2017, Bahrain’s Council of Representatives voted 31-1 on a proposed amendment to Bahrain’s Constitution that would enable military courts to try civilians.[viii] The Council of Representatives is the elected lower house of Bahrain’s National Assembly and is made up of 40 seats.[ix] Next, the proposed amendment will go to the upper house of Parliament,[x] the Consultative Council, which is made up of 40 members that are appointed by King Khalifa.[xi] Article 120 of Bahrain’s Constitution states that proposed amendments to the Constitution require the approval of 2/3 of both chambers of Parliament and approval of King Hamad.[xii] If approved there and by King Khalifa, the amendment is implemented and could have detrimental effects on the Bahraini people.[xiii]

Currently, Article 105(b) of Bahrain’s 2002 Constitution states that “the jurisdiction of military courts shall be confined to military offenses committed by members of the Defense Force, the National Guard, and the Security Forces.”[xiv] If approved, this bill effectively removes limitations on military courts by expanding their jurisdiction to civilians[xv] This change would further empower security forces amid a crackdown on dissent at a level not seen since the 2011 Arab Spring protests.[xvi] Yet, Brig. Gen. Yussef Rashid Flaifel, head of the country’s military courts, said the change is necessary to fight rampant terrorism in the nation.[xvii] The explanatory note on the proposed amendment confirms this intent by citing that the spread of terrorism in the region and the military courts flexibility and speed in investigations and sentencing justifies removing the restriction.[xviii]

Despite the national security concern, activists are outraged over this potential amendment.[xix] “The Bahraini king is effectively creating a police state with this de facto marital law” said Sayed Alwadaei, the director of advocacy at the Bahrain Institute for Rights and Democracy.[xx] The last time military courts prosecuted civilians was in 2011 in state of emergency in Bahrain. During that three-month time frame, the courts convicted approximately 300 people of political crimes in prosecutions designed to punish those in the opposition and to deter political opposition [xxi] Doctors, nurses, and the Bahrain 13 (a group of political leaders and human rights defenders sentenced to between five years and life imprisonment) were among the 300 convicted.[xxii] In June and August 2011, King Hamad transferred these cases to civilian courts, which upheld the results of the convictions, which were based on exercising basic rights of freedom of expression and peaceful assembly.[xxiii]

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Furthermore, the Bahrain Independent Commission of Inquiry (“BICI”), an international panel appointed by the King to investigate abuses, determined that the fundamental principles of a fair trial, including prompt and full access to legal counsel and inadmissibility of coerced testimony, were not respected in the courts.[xxiv] This has been an ongoing trend as civilian criminal and military Bahraini courts have been a part of the subpar fair trial standards in the wake of political dissent.

For instance, Bahrain civilian courts have routinely convicted defendant’s purported crimes that involved merely a defendant’s expression of political views.[xxv] To justify sentencing prominent opposition activists to long prison terms, a civilian court found that while unlawful means, such as the use of force, must be employed to qualify an act of terrorism, the force need not necessarily be military because terrorism can be the result of moral pressure.[xxvi] The increase of more speed and flexibility into an already unjust justice system in Bahrain is the wrong direction to go in.[xxvii]

Besides the clear and obvious unfairness, international human rights bodies have determined that trials of civilians before military tribunals violate the right to be tried by a completely independent and impartial tribunal.[xxviii] Civilians should be tried by military courts only under exceptional circumstances and only under conditions that genuinely afford the full due process.[xxix] Leading Bahraini legal experts expressed fear that civilians will be prosecuted and denied fair trials and access to lawyers.[xxx]

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This prediction stems from the execution of three torture victims in January 2017 after civilian criminal courts convicted them and sentenced them to death under a broad anti-terror law.[xxxi] Judges dismissed the credible reports of torture and denied defendants access to legal counsel. UN Special Rapporteur on extrajudicial killings investigated and determined that executions were, in fact, extrajudicial.[xxxii] Also in January 2017, the king reinstated the Bahrain National Security Agency’s (“NSA”) power to arrest. NSA is Bahrain’s intelligence service, that was involved in a systematic arbitrary detention and torture in 2011, resulting in death of at least one detainee.[xxxiii] The re-empowerment of the NSA began exercising its renewed power in February 2017 with the arrest of medical professional for providing treatment to a protestor.[xxxiv]

The unconditional support provided by its allies in London and Washington has influenced and increased these dictatorial efforts, which ultimately harms the people of Bahrain.[xxxv] With important allies like United States ignoring such human rights violations and preparing to sell arms without reform conditions, the problem will only worsen without a strong international censure of this move. This is exactly why President Trump’s deal to approve a sale of fighter planes to Bahrain without any conditions is concerning.[xxxvi] Instead of giving aid to countries unconditionally, the United States should be using that leverage to promote basic human rights. It is even more necessary to promote this for allies, such as Bahrain, in order to continue international progress and ensure human rights are respected worldwide.

Elizabeth Hays is a third year law student at the University of Baltimore School of Law. She completed her undergraduate studies at the University of Baltimore, where she majored in Jurisprudence. Her legal interests include administrative law, national security law, and maritime law. Elizabeth has previously interned with the U.S. Army JAG Corps and the U.S. Coast Guard JAG Corps. Additionally, she participated in the winter study abroad program in Curaçao in 2015/16. She is currently the Co-President of University of Baltimore Students for Public Interest (UBSPI) and a Staff Editor for University of Baltimore Law Forum.

[i] Americans for Democracy & Human Rights in Bahrain, Bahrain Institute for Rights and Democracy, European Centre for Democracy and Human Rights, NGOs to Bahrain: Do Not Allow Military Courts to Judge Civilians, Americans for Democracy & Human Rights in Bahrain, Feb. 6, 2017.

[ii] Bahrain, Word Atlas, (2017).

[iii] Id.

[iv] Id.

[v] Bahrain Country Profile, BBC News, Sept. 1, 2017.

[vi] Bahrain, World Atlas, (2017).

[vii] Jon Gambrell, Bahrain Lawmakers Approve Military Trials for Civilians, Yahoo News, Feb. 21, 2017.

[viii] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[ix] Jon Gambrell, Bahrain Lawmakers Approve Military Trials for Civilians, Yahoo News, Feb. 21, 2017.

[x] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[xi] Jon Gambrell, Bahrain Lawmakers Approve Military Trials for Civilians, Yahoo News, Feb. 21, 2017.

[xii] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[xiii] Id.

[xiv] Id.

[xv] Jon Gambrell, Bahrain Lawmakers Approve Military Trials for Civilians, Yahoo News, Feb. 21, 2017.

[xvi] Id.

[xvii] Id.

[xviii] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[xix] Jon Gambrell, Bahrain Lawmakers Approve Military Trials for Civilians, Yahoo News, Feb. 21, 2017.

[xx] Id.

[xxi] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[xxii] Americans for Democracy & Human Rights in Bahrain, Bahrain Institute for Rights and Democracy, European Centre for Democracy and Human Rights, Bahrain: Constitutional Amendment Frees Military Courts to Try Civilians, Americans for Democracy & Human Rights in Bahrain, Feb. 21, 2017.

[xxiii] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[xxiv] Americans for Democracy & Human Rights in Bahrain, Bahrain: Constitutional Amendment Frees Military Courts to Try Civilians, Americans for Democracy & Human Rights in Bahrain, Feb. 21, 2017.

[xxv] Bahrain: proposed military trials of civilians, Human Rights Watch, Feb. 23, 2017.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] Id.

[xxx] Americans for Democracy & Human Rights in Bahrain, Bahrain: Constitutional Amendment Frees Military Courts to Try Civilians, Americans for Democracy & Human Rights in Bahrain, Feb. 21, 2017.

[xxxi] Id.

[xxxii] Id.

[xxxiii] Id.

[xxxiv] Id.

[xxxv] Id.

[xxxvi] Josh Rogin, The Trump’s team deal with Bahrain could ignore its human rights abuses, The Washington Post, Feb. 19, 2017.


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They Who Shall Not Be Named: The Unspoken Situation in Myanmar (Part Deux)

Kia Roberts-Warren

Last semester, I discussed the dire situation of the Rohingya in Myanmar. It seemed like Ms. Aung San Suu Kyi was working to bring a peaceful solution with the Rohingya. The situation seemed hopeful. Yet, here we are once again discussing this situation.

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“Things Have to Get Worse Before They can Get Better?”

On October 9, 2016, the situation escalated, resulting in death. The Harakah Al-Yaqin launched three predawn attacks on three police border posts.[1] One of the posts was the security headquarters; the assault involved several hundred assailants and included planting improvised explosive devices and setting an ambush on the approach road, delaying the arrival of army reinforcements, while the attackers looted the armory.[2] On November 12, 2016, in another encounter, a senior army officer was killed.[3]

The Tatmadew, the Myanmar military, retaliated with a counterinsurgency operation. This operation was disproportionate and failed to distinguish between civilians and combatants.[4] This resulted in about 1,500 buildings being torched in the township of Maungdew, an estimated 65,000 people have fled to Bangladesh as a result.[5] Documentation shows extrajudicial killings, rapes, arbitrary arrests, and beatings by the government security forces.[6] The Tatmadew have also almost entirely sealed off the northern area of Arakan in the Rakhine State.[7] The government has banned the Rohingya from using their boats to fish in order to “prevent insurgents from leaving or entering the country by sea,” leading to many risking their lives on makeshift rafts in order to get food for their families.[8]

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These human rights violations by the Tatmadew have not been handled well by the government. The government has admitted that people have been found dead and that those arrested were suspected members of Harakah Al-Yaqin and their supporters.[9] However, the government’s rebuttal to the human rights abuses have been undesirable. The country’s Attorney General’s office have posted “Fake Rape” on its website to discredit reports that the Tatmadew officers have committed rape.[10] Furthermore, the government has denied accredited journalists and human rights investigators access to verify the abuse.[11] The government formed a special investigative committee led by former General Myint Swe (now Vice President of Myanmar) to look into the October violence. Unsurprisingly, the committee quickly dismissed any and all claims of misbehavior by security forces.[12]

However, a few weeks ago the advisory committee created by Aung San Suu Kyi and headed by Kofi Annan met with Rakhine Buddhists and Rohingya residents from two villages.[13] The Secretary of Kaman National Development Party, Tin Hlaing Win, met with the advisory committee to tell the committee about the Rohingyas losing their rights over the last four years and their wish to return home.[14] The committee told Win that that would submit their demands to the government with their recommendations.[15]

  Over forty Myanmar-based civil society groups issued a statement asking for an independent investigation by the international community to into the human rights abuses by the Tatmadew.[16] Specifically, these groups requests that an investigation  “fully assess the totality of the situation in Rakhine state and provide clear recommendations for the current government to effectively address and prevent further problems in the Rakhine state.”[17] This statement came a day before foreign ministers of the Organization for Islamic Cooperation, an intergovernmental body of 57 member nations, met in Malaysia to discuss the plight of the Rohingya in Rakhine state.[18]

“The Other Side of the Coin: Harakah Al-Yaqin”

Although many Rohingya are peaceful, the October attack was launched by a group of Rohingya that the International Crisis Group has labeled the group as a Muslim insurgency. The group Harakah Al-Yaqin (the Faith Movement) was established after the 2012 riots between Muslims and Buddhists and is currently a group of twenty Rohingya who have experience in modern guerilla warfare and are leading operations in Northern Arakan.[19] A committee of Rohingya emigres based in Mecca oversees Harakah Al-Yaqin.[20] The Harakah Al-Yaqin have obtained fatwas from senior clerics in Saudi Arabia, United Arab Emirates, and Pakistan to enhance its religious legitimacy, backing its cause under Islamic law.[21] The group has spent the last two years training hundreds of local recruits in guerilla warfare and explosives.[22] There are some indications of training and solidarity links with international jihadist organizations, but it is important to distinguish the aims and actions of the Harakah Al-Yaqin – to secure the rights of the Rohingya in Myanmar using insurgency tactics against security forces.[23]

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“Momma is Stepping in”

  As a result of the escalating violence and the actions of the Myanmar government, the United Nations human rights envoy to Myanmar, Yanghee Lee, went on her biannual 12-day visit in January.[24] Lee had discussed with Aung San Suu Kyi the security situation in the northern Rahkine State, the reports of the abuses by the security forces, and the increasing need for humanitarian assistance for people displaced by fighting between the government army and ethnic guerilla groups in war-torn Shan and Kachin states.[25]

Lee also met with Vice President Myint Swe, chairman of the special investigation committee, to question the investigation methods of the committee.[26] This was due to the interim report issued on January 3 that the rape allegations resulted insufficient evidence to take legal action and the accusations of torture, arson, and illegal arrests were still being investigated.[27] Moreover, Lee did not allow the authorities to join her when she visited villages in Maungdaw township to talk to residents.[28] She also met with Rohingya Muslims in adjacent Buthidaung township and visited the local prison there.[29] Yet, reports indicate she was denied access to certain areas.

Lee is to submit a report to the U.N. Human Rights Commission in March.[30]

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“Where Do We Go From Here?”

The situation in Myanmar has left the international community thinking “what now?” Until Yanghee Lee releases her report in March, the advisory committee will continue talks with Rakhine Buddhists and Rohingyas in the Rakhine State. The committee will hopefully foster negotiations between the government and the Rohingya to help them attain such basic rights as citizenship, the right to life, access to government resources, among other rights. Meanwhile, the Rohingya continue to wait and suffer.

Unfortunately, the most complicated part of this situation is the intervention of Islamic countries, which only adds to the tension. These countries do not involve the government of Myanmar government in these conferences. Moreover, neither the UN nor the Myanmar government is addressing such involvement. Yet, the primacy of territorial sovereignty makes interference by other States into Myanmar a precarious situation.

Kia Roberts-Warren is a 3L at UB Law. She is concentrating in international law. Kia graduated from Temple University receiving a BA in East Asian Studies during that time she spent a semester in Tokyo, Japan. Kia has an interest in international trade and human rights. She is also interested in fashion law and art law in the international context. Last year, she held the position of Career Development Director of the International Law Society and participated in the 2016 Philip C. Jessup Moot Court Competition. She recently attended UB’s Aberdeen Summer Abroad Program. 

[1] http://time.com/4601203/burma-myanmar-muslim-insurgency-rohingya/

[2] Id.

[3] Id.

[4] Id.

[5] https://www.nytimes.com/2017/01/16/opinion/the-rohingya-the-ladys-problem-from-hell.html?_r=0

[6] Id.

[7] Id.

[8] http://www.businessmirror.com.ph/banned-boats-myanmar-rohingya-fish-rafts-junk/

[9] https://www.nytimes.com/2017/01/16/opinion/the-rohingya-the-ladys-problem-from-hell.html?_r=0

[10] Id.

[11] Id.

[12] Id.

[13] http://www.rfa.org/english/news/myanmar/un-rights-envoy-meets-with-aung-san-suu-kyi-to-discuss-volatile-rakhine-state-01182017160404.html

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] http://time.com/4601203/burma-myanmar-muslim-insurgency-rohingya/

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] http://www.rfa.org/english/news/myanmar/un-rights-envoy-meets-with-aung-san-suu-kyi-to-discuss-volatile-rakhine-state-01182017160404.html

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id.


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From the Age of Big Brother, [TITLE CONTENT CENSORED (and that *might* not be a terrible thing…)], Greetings!

Margie Beltran

 

 

The mystique of a dystopian society has maintained a consistent intrigue across the history of mankind.  The imagination of man runs wild when he thinks about the “what ifs” and how they would affect the way we live.

The Time Machine; 1984; Brave New World; Planet of the Apes; The Giver; The Hunger Games; The Divergent Series; and, of course, that paramount episode of The Twilight Zone when all that poor man wanted to do was read his books – he becomes the last man on Earth and can finally sit on the remains of the post-apocalyptic library, reading for the rest of his days. And then, he accidentally steps on his glasses and yells, “That’s not fair, there was time now!”

We have seen the same theme time and again: mankind begins to self-destruct and in the bout of chaos and anarchy, a powerful leader/governing body rises from the ruins and reshapes society into a peaceful and balanced ecosystem.  Beautiful, no? So, what’s the catch? To have order and peace, one must forego the right to freedom and privacy.

My friends, hold on to your Mockingjay pins, for the dawning of the dystopian society may be upon us.

On November 29, 2016, The Investigatory Powers Act (IPA) was passed in the UK set to be enforced in January 2017.[i]  Not the first of its kind among the EU Member States, the IPA was satirically dubbed the “Snooper’s Charter” by those who opposed it. The Act grants law enforcement easier access to the private communications of UK citizens.[ii]  Some of the major provisions[iii] include, but are not limited to:

  1. Power to issue warrants for intrusive surveillance granted to ministers.
  2. Easier access for the government to retain browser history from popular websites.
  3. Ability to collect bulk communications data and to hack suspect’s electronic devices.

Over the past few years, terrorist attacks have become a consistent and troubling threat throughout Europe.[iv]  Although aware of the threat posed by terrorism, many within the EU are concerned since allowing the government into their phones and personal computers was not quite what many had in mind, as far protective measures go.[v]  Amnesty International (AI) criticized the UK, a nation considered to be a fierce protector of human rights, for setting such an example to other EU-Member States.[vi] According to AI, the Snooper’s Charter is “a modern twist of the Orwellian ‘thought crime,’ [in which] people can now be prosecuted for actions that have extremely tenuous links to actual criminal behavior.”[vii]

I sympathize and empathize with this issue under two lenses: the first, my rose-colored-goggles human rights activist perspective, in which I feel the rights of the people should be staunchly protected and the foremost concern of the governing body to any nation because it is what is just and humane; and the second, as a young American adult who remembers being a nine-year old, enveloped with gut-wrenching fear for reasons I could not even comprehend, living just minutes from Washington D.C. on September 11, 2001, and seeing the glazed-over eyes and clenched jaws of my peers whose parents worked downtown trying to hold back their tears in school for weeks following the attack.

The day the government is definitively tracking every communication we send and receive will be a disturbing one for sure.  Even if they have nothing to hide, many people are bothered knowing a third party is always reading, analyzing, and judging everything they type or say.

While freedom of speech is of the utmost importance, I continually find myself reverting to the lenses of nine-year old me.  If the ones I love are at risk of being hurt, I would give up my right to privacy within the confines of this act.  Maybe not permanently – and that is a risk that holds high with a law challenging a fundamental freedom – but at least until this state of emergency in Europe eases.

Think about The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (far more commonly known as The USA PATRIOT Act) enacted during the George W. Bush Administration in 2001 following the 9/11 attacks which enabled law enforcement to detect and prevent terrorism attacks by expanding the scope of their investigatory practices.[viii]  The USA PATRIOT Act passed in Congress across the bipartisan margins.[ix]  In the Senate, the act passed with nearly a unanimous at a 98-1 vote, while the House voted in favor with a 357-66 vote.[x]

Regarding terrorist attacks, the US has not faced an attack of the magnitude of 9/11 since the act was decreed.  While the USA PATRIOT Act has its flaws, as most laws do, the original purpose for introducing the bill has generally been satisfied.  The UK appears as if the IPA has received the same treatment by Parliament.[xi]  According to London-based journalist, Ewen MacAskill, the bill passed “with barely a whimper.”[xii]  Further, he said the marginal resistance to the bill did not come from outside of the parliament’s four walls, indicating the people of the UK and Parliament are both in support of the IPA.[xiii]  If the citizens of the UK are not complaining about the new law and choosing to exercise their right of privacy by foregoing their right of privacy, then so be it.  They have the right to invite Big Brother into their lives.

To the future or to the past, to a time when thought is free, when men are different from one another and do not live alone – to a time when truth exists and what is done cannot be undone…from the age of Big Brother – greetings!” – George Orwell, 1984[xiv]

 

Margery Beltran is a third year law student at the University of Baltimore School of Law (Candidate for J.D., May 2017).  She holds a Bachelor of Science in Family Science with a minor in Psychology from Towson University.  Her interests include mental health and disability law and international alternative dispute resolution. Margie currently serves as the Volume V Comments Editor for the University of Baltimore’s Journal of International Law. She participated in the 2016 Summer Abroad Program at the University of Aberdeen School of Law in Aberdeen, Scotland.  She is currently an intern in Washington D.C. for the U.S. Department of Health and Human Services, Alternative Dispute Resolution Division.

[i] http://www.natlawreview.com/article/uk-investigatory-powers-act-2016-how-to-prepare-digital-age

[ii] Id.

[iii] Id.

[iv] https://www.theguardian.com/uk-news/2017/jan/17/uk-counter-terror-laws-most-orwellian-in-europe-says-amnesty

[v] Id.

[vi] https://www.amnesty.org/en/latest/news/2017/01/eu-orwellian-counter-terrorism-laws-stripping-rights-under-guise-of-defending-them/

[vii] Id.

[viii] https://www.justice.gov/archive/ll/highlights.htm

[ix] Id.

[x] Id.

[xi] https://www.theguardian.com/world/2016/nov/19/extreme-surveillance-becomes-uk-law-with-barely-a-whimper

[xii] Id.

[xiii] Id.

[xiv] 1984 by George Orwell

 

 


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South Africa’s Opposition to LGBTI Watchdog

 

John Rizos

“It would turn back the clock on the progress made globally in relation to LGBTI rights.” The Director for ARC International lamented in response to the opposition for denouncing the UN Human Rights Council’s resolution to monitor and investigate LGBTI rights violations more closely[1]. Although the resolution is not binding, by merely calling upon and encouraging State cooperation[2], the protections it offers cover basic human rights and treatment.

On June 30, 2016 the UN Human Rights Council (UNHRC) adopted the resolution, establishing an independent expert for the protection against violence and discrimination based on sexual orientation and gender identity[3].  The UNHRC recommended the position of an independent expert after reports of widespread violence and deaths in the LGBTI community[4]. It mandates the expert with the responsibilities to assess implementation of international instruments, to raise awareness of discrimination, to work in cooperation with States, to address forms of violence, and to conduct advisory services[5]. Vitit Muntarbhorn was appointed as the independent expert on September 30, 2016[6]. However, the resolution is currently receiving strong opposition with a call for cancellation from a coalition of African states. .

Through a separate resolution to the General Assembly, the African bloc is seeking to suspend and subsequently repeal the independent expert position and the UNHRC’s resolution altogether[7]. Sierra Leone initiated a resolution on behalf of the Group of African States to “defer consideration” of the position[8], to delay monitoring and to suspend activities pursuant to a determination of the legality of the HRC’s resolution[9].

The African States are claiming that the UNHRC’s resolution violates international law. They claim that it delves into matters reserved for domestic jurisdiction, that it gives priority to sexual orientation discrimination while it ignores other types of African discrimination and development[10], and that it lacks universal support[11]. Further, the African Group claims that sexual orientation and gender identity should not be linked to international human rights instruments[12]. Amongst the countries of the African opposition is South Africa, which had also abstained from voting in the UNHRC’s resolution[13].

The opposition’s reaction is not a surprise. However, South Africa’s stance is surprising as it has contributed to and upheld the development of progressive jurisprudence[14]. It is also surprising due to the country’s discrimination struggles, Constitutional guarantees to universal rights, and recent actions regarding protection of LGBTI rights[15]. South Africa abstained from voting during the UNHRC’s resolution because of alleged “unnecessary divisiness”[16]. It currently appears to agree with the African States’ stance that the UNHRC resolution jeopardizes “the entire international human rights framework as [it] create[s] divisions” and that it does not fit within international law[17].

Even recently, the South African Department of Justice has worked to protect LGBTI rights and the Department of Home Affairs was in the center of controversy by refusing entry to a pastor who had made homophobic hate speeches[18]. So, why did South Africa choose to side with the rest of Africa? Initially abstaining from the vote, but then agreeing with the rest of Africa may be the result of strategic appeasement. South African officials have been criticized for aligning with “Western” beliefs and for persuading the rest of Africa in aligning its politics pursuant to such beliefs[19]. Further, South Africa still owes a large debt to certain African countries for aid during the apartheid and trade to the rest of Africa accounts for $20 Billion of Africa’s trade[20].

The claims that sexual orientation and gender identity should not be included in international law mechanisms are unjustified. Orientation and identity are not outside of international law as they are protected in the principles of universality and non-discrimination established in the Universal Declaration of Human Rights and the International Covenant on Civil Political Rights[21] [22] [23]. Also, the claim that UNHRC’s agenda on sexual orientation and gender identity overlooks issues relating to racism is frivolous. The UNHRC resolution’s purpose is to support a broad agenda, to strengthen mechanisms, and to address issues of racism, discrimination, and related intolerance in any form[24]. Further, claims that the UNHRC resolution violates sovereignty and non-intervention purport a misunderstood role of the appointed expert. The expert is not a decision-making or enforcement body, but instead its purpose is to address issues, raise awareness, engage in dialogue, and to work in cooperation with States for any recommended implementations[25]. Lastly, the unprecedented suspension of the UNHRC resolution would hinder the Council’s institutional architecture and autonomy[26], which would render it “toothless” to future oppositions[27].

If the African bloc’s resolution is put forward for a vote to the General Assembly, South Africa will likely abstain in order to appease Western Countries and to be in accordance with its constitutional guarantees. The backlash from voting against the UNHRC resolution would be too damaging to the State’s reputation and politics as the champion of anti-discrimination following the end of apartheid. It would receive criticism from governments and NGOs alike. South Africa’s stance is most likely a “bluff” in order to appease other African countries until the issue has lost its “steam.”

US officials strongly support the UNHRC resolution and warn that re-opening the resolution to opposition could undermine the council’s ability to function and enforce their mandates. They noted that such review will weaken the Council, as it has never been subject to intervention by the UN General Assembly[28]. Further, a representative from the EU reminded that the States must “protect the human rights of all individuals without distinction of any kind.”[29] The representative emphasized that they have an international obligation to uphold the UNHRC resolution and the opposition lacks legal foundation to oppose it.[30] Amidst Western warnings, the African bloc’s resolution has a good chance of obtaining the necessary 97-vote simple majority to pass,[31] with the support of the African States and almost every State in the Organization of Islamic Cooperation.[32]

The vote on the African States’ resolution in the General Assembly was scheduled for Tuesday, November 8, 2016. However, the UN has delayed talks and voting on canceling the independent expert and amending the UNHRC resolution until later this month, November 2016.[33]

John Rizos is a 3L at the University of Baltimore School of Law with a concentration in International Law. He has an interest in human rights and international criminal law. In addition to being a CICL Fellow, John has served as the Secretary for Phi Alpha Delta Law Fraternity and is currently enrolled in HarvardX’s online course, “Humanitarian Response to Conflict and Disaster.” In June 2016, John was a member of the CICL Fellows team that, under the supervision of Professor Moore, assisted in drafting an amicus brief to the Extraordinary Chambers in the Courts of Cambodia, which was later approved and published. John graduated with honors from Towson University with a BA in International Studies (2013). He has interned at the Press Office of the Greek Embassy in Washington, D.C. and the International Civil Advocacy Network (ICAN), a non-profit organization advocating for women’s rights in the Middle East.

[1] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[2] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2

[3] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[4] http://afkinsider.com/134853/african-countries-oppose-new-un-gay-rights-envoy-world-bank-appoints-lgbt-promoter/

[5] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2

[6] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[7] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[8] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[9] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[10] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[11] http://www.cnsnews.com/news/article/patrick-goodenough/un-african-and-islamic-states-reject-western-led-lgbt-human-rights

[12] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[13] http://www.un.org/en/ga/search/view_doc.asp?symbol=A/HRC/RES/32/2

[14] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[15] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[16] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[17] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[18] http://mg.co.za/article/2016-11-07-sa-backs-africa-groups-view-that-lgbti-rights-have-no-place-in-international-law

[19] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[20] http://www.dailymaverick.co.za/article/2016-11-11-gender-discrimination-sas-about-turn-appeases-african-countries-that-do-not-protect-gay-rights/#.WCpgncndlMF

[21] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[22] http://www.un.org/en/universal-declaration-human-rights/

[23] http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[24] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[25] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[26] http://www.cnsnews.com/news/article/patrick-goodenough/un-african-and-islamic-states-reject-western-led-lgbt-human-rights

[27] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[28] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[29] http://www.un.org/en/universal-declaration-human-rights/ at Article 2.

[30] http://www.miamiherald.com/news/local/community/gay-south-florida/article112741003.html

[31] https://76crimes.com/2016/11/07/anti-lgbt-nations-seek-to-end-u-n-advocacy-of-lgbt-rights/

[32] http://afkinsider.com/134853/african-countries-oppose-new-un-gay-rights-envoy-world-bank-appoints-lgbt-promoter/

[33] https://76crimes.com/2016/11/10/opposition-and-delay-confront-anti-lgbt-push-at-u-n/