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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The Walls Are Closing In! Torture in Global Prison Systems

Bryana Spann

On March 1, 2017, Spike TV premiered the first episode of “Life: The Kalief Browder Story”, a six-part docu-series about the life, incarceration and death of Kalief Browder. In 2010, Browder was arrested at the age of sixteen for allegedly stealing a backpack and then held in pretrial detention at Riker’s Island for over 1,000 days, with more than 700 days in solitary confinement.[1] For many, his questionable detention is reminiscent of the “The Angola 3”, three men who were held in solitary confinement for a combined total of more than 100 years for the killing of a prison guard at Louisiana State Penitentiary.[2] Even in 2013, a South Carolina inmate was sentenced to 13,680 days (37.5 years) in disciplinary detention for posting on Facebook 38 times.[3] Once again, we must bring to our attention what seems to be an unrestrained administration of solitary confinement in the United States and the rest of the world.

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Solitary confinement is defined as the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day.[4] Although a popular tool of punishment, it has several negative psychological effects. In an interim report, the Special Rapporteur of the on Torture and other Cruel, Inhumane or Degrading Treatment or Punishment, Juan E .Méndez drew attention to the widespread use and disadvantages of solitary confinement.[5] Symptoms include anxiety, depression, paranoia, and self-harm for those who had no history of mental illness. [6] In fact, suicides occur disproportionately more often in segregated units than elsewhere in prison.[7] For those who entered with mental illness, there can be an exacerbation of those symptoms. [8] Even post isolation, these symptoms can continue and affect social interactions because of lack of mental health services.[9] The lack of sustained social interaction can cause impairment in the human brain similar to a traumatic injury.[10] In December 2007, several experts and in psychology and law convened at the International Psychological Trauma Symposium to issue the Istanbul Statement on the Use and Effects of Solitary Confinement.[11] The joint statement also noted that the psychological pressure when used on purpose of isolation regimes can become coercive and can amount to torture, especially when the pressure pre-trial detainees to plead guilty. [12] Effort is required to raise the level of meaningful social contacts for prisoners, via psychologists, psychiatrists, religious prison personnel, or even family and friends, to decrease the harmful effects of solitary confinement.[13] The joint statement, along with many other rights advocacy groups, has encouraged the prohibition of solitary confinement for children under the age of 18, mentally ill prisoners, and death row or life-sentenced prisoners by virtue of their sentence.[14]

Torture has long been acknowledged as a jus cogens norm in international law, meaning that a State cannot derogate from the prohibition. In the context of international organs, prolonged solitary confinement (longer than 15 days) can amount to acts prohibited by article 7 of the International Covenant on Civil and Political Rights and torture as defined in article 1 if the Convention against Torture due to the severe adverse health effects and the possible irreversible psychological effects.[15] The Subcommittee on the Prevention of Torture has pointed out that solitary confinement should not be used in the case of minors or the mentally disabled.[16] The Committee on the Rights of the Child and the Committee on the Prevention of Torture have both urged states to abolish the use of solitary confinement, or at least use it only in exceptional circumstances under strict regulation.[17]

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Although the Convention on Torture has been widely ratified with 160+ state parties, including the United States, extended solitary confinement has been one that many countries seem to make excuses for. The primary justifications for solitary confinement usually fall under five general categories: to punish an individual; to protect vulnerable individuals; to facilitate prison management of certain individuals; to protect or promote national security; or to facilitate pre-charge or pre-trial investigations.[18]

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These justifications seem to seep into the perception of the public, especially those who are opposed to the death penalty. Ramzi Yousef, the man behind the World Trade Center bombing, was sentenced to 240 years plus life in solitary confinement in 1998.[19] Anders Bering Breivik, the right-wing extremist who killed 77 people in Norway, has been kept in solitary confinement since his 21 year sentence was handed down in 2012. This is notable, since Norway has signed and ratified the ICCPR, the Convention on Torture, and the European Convention on Human Rights, including Protocols 1 – 15.[20] Most people would not deny the danger these persons pose to the public but the conversation becomes murkier when the conversation of solitary confinement turns to immigrants or prisoners of war. With over an estimated 80,000 U.S. prisoners being kept in isolation,[21] there has to be a shift in dialogue to a more humane form of punishment that does not break the psyche. As of now, the imposition of solitary confinement is at the discretion of prison administrators[22], whose main concern is to maintain prison order. However, criminal recidivism has been occurring at a higher rate for those in solitary confinement,[23] which in general poses a greater risk to the public. It may be time to look at alternative methods of punishment or make it more of a policy issue that involves the legislature so that stories, such as the Kalief Browder story, stop themselves from replicating.

[1] https://www.yahoo.com/news/time-kalief-browder-story-review-185022084.html

[2] http://www.npr.org/2016/03/19/470828257/after-decades-in-solitary-last-of-the-angola-3-carry-on-their-struggle

[3] https://www.eff.org/deeplinks/2015/02/hundreds-south-carolina-inmates-sent-solitary-confinement-over-facebook

[4] http://solitaryconfinement.org/istanbul

[5] http://www.ohchr.org/EN/HRBodies/SP/Pages/GA66session.aspx

[6] Id.

[7] http://jaapl.org/content/38/1/104

[8] http://www.ohchr.org/EN/HRBodies/SP/Pages/GA66session.aspx

[9] Id.

[10] http://www.newyorker.com/magazine/2009/03/30/hellhole

[11] http://solitaryconfinement.org/istanbul

[12][12] Id.

[13] Id.

[14] Id. See also, http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Issues/Disability/A.63.175.doc&action=default&DefaultItemOpen=1; http://www.ohchr.org/_layouts/15/WopiFrame.aspx?sourcedoc=/Documents/Publications/Slides/SlidesChapter8.pptx&action=default&DefaultItemOpen=1.

[15] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx

[16]http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fOP%2fPRY%2f1%2fADD.1&Lang=en

[17] http://www.ohchr.org/EN/HRBodies/SP/Pages/GA66session.aspx

[18] Id.

[19] http://www.cnn.com/US/9801/09/solitary.confinement/index.html

[20] http://www.coe.int/en/web/conventions/search-on-treaties/-/conventions/chartSignature/3; http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=129&Lang=EN

[21] http://www.bbc.com/news/world-europe-35813348

[22] http://www.newyorker.com/magazine/2009/03/30/hellhole

[23] http://solitarywatch.com/facts/faq/


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Greed Over Life

Christian Kim

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The air was tense as the wind softly fluttered a weather-worn flag on top of a pole.  A deep thud echoed in the air as a tribal elder slammed the ground with his staff.  A quiet echo of “mni wiconi, mni wiconi” (“Water is Life,” in Lakota) accompanied each thud from the elder’s staff.[1]  A static crackle came a hundred or so meters from the group.  Suddenly a loudspeaker blared, “Please disperse.  You are disrupting progress!”  The slow chants of “mni wiconi, mni wiconi” progressively grew louder as another cackle from the loudspeaker echoed, “This is your final warning, please disperse!”  What was meant to quiet the chants seemed to fuel it even more as the chants of “MNI WICONI, MNI WICONI” made the loudspeaker inaudible to those near the protestors.  Then, a bang, accompanied by smoke, filled the air and silence immediately descended on the arid Dakota soil.  The tribal elder, fell to the ground in unison with his staff.  Shrieks of anger and outrage rang as the protestors ran towards the aid of the tribal elder.

The Dakota Access Pipeline is a 1,170 mile long pipeline that could potentially transport over 570,000 barrels of fracked crude oil daily.[2]  It is not uncommon to stumble upon a news report showing footages of rescuers picking up seagulls or sea otters drenched in thick black sludge.  Like many oil pipeline projects, the danger of an oil leak isn’t a far-fetched concern.  The concern here is that this pipeline, which is less than half a mile upstream from the Standing Rock Sioux Tribe’s drinking water source, has the potential to leak.  For many months, Native American protestors occupied land across the Missouri River to show their outrage at the Dakota Access Pipeline.  These protestors, who would rather be called “Water protectors”, attempted to stop construction through united tribal gatherings.  In order to continue with the construction, North Dakota and six other states sent police officers to arrest and even to attack the “Water Protectors” often leading to disastrous results.  Many of those arrested were sent to the Morton County Correctional Center and placed in cramped cages.  Some, were even placed in makeshift dog kennels to follow the sudden demand of prisoners.  In prison, many of these “water protectors” received food, water, and medical attention in an extremely delayed manner.  In an attempt to stop the construction, some of the “Water Protectors” even chained themselves to construction equipment.  As a result, officers water boarded these individuals to quell the protests.[3]

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Under the United Nations’ Convention against Torture and Other Cruel, Inhuman or Regarding Treatment or Punishment (UN Convention), all of these treatments can fall under Article 1 which states

“Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person …or for any reason based on discrimination of any kind.”.[4]

Article 1 is even more applicable in the situation at hand since most of these “water protectors” are of Native American descent, a historically discriminated group even before the creation of the United States.

In addition, the construction violates one of the basic rights that a human could have, the right to water.  Clean drinking water is an indispensable necessity to sustain life.  Although it is common knowledge that drinking oil contaminated water is deadly, not many individuals are aware that drinking even post-treated water that was contaminated by oil is unsafe to drink due to chemical residue.[5]  Since the Dakota Access Pipeline spans for more than a thousand miles, it is foreseeable that it will leak at one point or another.  The recent Alabama pipe explosion which killed a pipeline worker demonstrates the dangers of oil pipeline projects.[6]In the 29th Session of the United Nations Committee on Economic, Social and Cultural Rights, general comment 15 stated that “the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses.”[7]  Although Article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states that everyone has the right to an adequate standard of living “including adequate food, clothing and housing,”[8] general comment 15 clarified that the use of the word including means that the list was not exhaustive.  The Committee stated that within this category, “water clearly falls within the category of essential for securing an adequate standard of living.”  “The human right to water is indispensable for leading a life in human dignity.  It is a prerequisite for the realization of other human rights.”[9]  The General Comment also clarified the obligation of states and also international obligations which include: respect the right to water by refraining from interfering directly or indirectly with the enjoyment of the right, protect the right to water by preventing third parties from interfering in any way with enjoyment of the right to water, fulfill the right to water by adopting the necessary measures directed towards the full realization of this right.  Although the U.S. signed but did not ratify the ICESCR, the signing of the treaty expresses the willingness to refrain in good faith, from acts that would defeat the purpose of the treaty.

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Recently, a UN Group stated that they would investigate the human rights abuses going on in South Dakota.[10]  With the election season over, it is time for the United States to take charge and address this situation right away before it plays out as an international embarrassment. Even though the United States is not a party to the Declaration on the rights of indigenous peoples, it should make strides to improve the quality of this historically discriminated group.[11]   Sadly, the ill-treatment of Native Americans is not a novel concept in our nation’s history.  Countries with terrible record of human rights would often reflect U.S. official’s criticisms of their country human rights violations by pointing out various human rights violations going on in the United States.  Some fall in the form of discrimination within our country, the continued use of capital punishment, and now these countries can point to the Dakota Access Pipeline as another.  Even though the United States only signed but did not ratify the ICESCR and UN Convention, as a global leader on human rights, the United States has to halt the construction of the Dakota Access Pipeline and stop the terrible treatment of these “water protectors.”

Christian Kim is a 3L at the University of Baltimore School of Law with a concentration in International and Comparative Law.  He graduated from the University of Maryland (2012) with a Bachelor of Arts in Criminal Justice.  He served as the President of the Asian Pacific American Law Student Association and is currently the Chief of Staff for the Student Bar Association.  His interests are East Asian politics, international conflicts, and human rights.  Before law school, Christian worked for the Korean Ministry of Education as a TaLK (Teach and Learn in Korea) Scholar and Coordinator for two years.  He is currently a legal researcher for the U.S. Commission on International Religious Freedom and a law clerk for the Law Office of Hayley Tamburello.

[1] http://www.walkinbeauty-bethechange.com/mniwiconi.html

[2] http://www.globalresearch.ca/the-dakota-pipeline-the-human-right-to-water-at-standing-rock/5555110

[3] http://www.counterpunch.org/2016/10/28/standing-rock-water-protectors-waterboarded-while-the-cleveland-indians-romped/

[4] http://wrweb.org/legal/cat.html

[5] http://en.hesperian.org/hhg/A_Community_Guide_to_Environmental_Health:Oil_Spills

[6] http://www.al.com/news/birmingham/index.ssf/2016/11/alabama_pipeline_explosion_fir.html

[7] http://www2.ohchr.org/english/issues/water/docs/CESCR_GC_15.pdf

[8] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx

[9] http://www.righttowater.info/progress-so-far/general-comments-2/

[10] https://www.theguardian.com/us-news/2016/oct/31/dakota-access-pipeline-protest-investigation-human-rights-abuses

[11] http://www.ohchr.org/EN/Issues/IPeoples/Pages/Declaration.aspx