Tuesday, February 22, 2011
Ekaterina Sivolobova, a student in the Faculty of Law at the University of Buenos Aires, Argentina, writes about the failure of the Uruguayan Reparations Law to address Uruguay's responsibilities under international law...
In October 2009, Uruguay enacted law 18.596 (also known as Uruguayan Reparations Law), which recognizes the right of victims to receive reparations for the human rights violations committed by the State between June 1968 and February 1985. With the Uruguayan Reparations Law, composed of 24 articles, the State recognizes for the first time its failure to protect fundamental human rights, in addition to its participation in systematic practices of human rights violations, such as torture and forced disappearances. Although this is a positive step towards complying with international standards, the Uruguayan Reparations Law remains restrictive. More disturbingly, and paradoxically, it acts as an amnesty law in disguise.
To properly identify the failures of law 18.596, the fundamental principles of reparations will be considered against the articles manifested in this law. The UN Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (hereinafter UN Principles on Reparation) has laid out five fundamental principles of reparation: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
The first principle stated in the UN Principles of Reparations is restitution (restitutio in integrum). This principle is the primary form of reparations since it looks to "restore the victim to the original situation before the gross violations." However, in practice, the possibility of restoring the victim to his or her original situation is close to impossible. Restitution includes: restoration of liberty; enjoyment of human rights, identity, family life and citizenship; return to one's place of residence; restoration of employment; and return of property.
The Uruguayan Reparations Law makes reference to various laws covering some aspects of restitution. Some of the laws it refers to are: Law on the reinstatement of dismissed government employees (Law 15.783); Law on persons who were obligated to abandon the country (Law 17.449); Laws on the recuperation on pension and retirement benefits (Law 17.949 and Law 18.033); and Law on the declaration of absence of the forcibly disappeared (Law 17.894).
Although these measures try to achieve some measure of status quo ante, they might not be sufficient. As an example, the Reparations Law fails to decriminalize the acts for which victims were arrested, and it does not require for the State to return victims' property expropriated during the dictatorship.
Compensation, as defined in the UN Principles on Reparations, is a form of reparation that provides economic compensation for human rights violations. Important aspects to be considered in determining appropriate compensation include: physical or mental harm; loss of opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; moral damage; costs required for legal or expert assistance, medicine and medical services, and psychological and social services.
Those who will be compensated under the Uruguayan Reparations Law include the families of the disappeared or killed, the families of the children who disappeared for more than 30 days, irrespective of whether their identities have been revealed, and those who suffered grave harm. The law does not offer any monetary compensation to families or dependents whose family members were imprisoned, in many cases for years.
The Uruguayan Reparations Law establishes compensation for a very limited group of victims, and the amount of compensation is the same regardless of individual circumstances. In other words, all families will be paid the same amount, without considering the different circumstances and different damages (e.g., loss of earnings). Furthermore, the reparations law does not attempt to provide compensation for the loss of opportunities, for the loss of earnings and earning capacity, moral damage and costs of legal actions taken by victims' families.
Victims of human rights abuses are also entitled to receive other forms of compensation, such as rehabilitation. Rehabilitation includes measures to promote physical, psychological and legal and social services "for as full rehabilitation as possible [sic]" (Article 14 CAT).
The measures of rehabilitation in the Uruguay Reparations Law are few and limited in scope. The Reparations Law provides medical services free of charge as well as psychological rehabilitation, but only to those victims who suffered a violation of their physical and psychological integrity and who were imprisoned for more than 6 months. This limited group excludes all families of victims.
Satisfaction is also a form of reparation and helps restore dignity to the victims and their families. Satisfaction should include a judgment against the perpetrators of the crime, but this should be accompanied by a public acknowledgement of the truth and the recognition of the state's responsibility for wrongdoing. In addition, satisfaction can include public commemoration, which has the symbolic value of memory and justice. Public commemoration can take the form of naming streets after victims or creating public places dedicated to the victims.
Satisfaction measures in the Uruguayan law have helped to restore dignity to the victims to a limited extent. The state, among other things, has recognized its responsibility for the wrongful acts committed during the dictatorship and has created public spaces to commemorate the victims. Nevertheless, the law does not mention if the government will acknowledge this responsibility publicly or if it will only remain in the form of a law. Furthermore, the state fails to grant other possible measures of satisfaction (compared to the reparation law from Peru Law N. 28.595), such as reconciliation acts in coordination with the victims, creation of a remembrance day for the victims, creation of a victims registry and individual letters sent to the victims and their families recognizing state responsibility.
Measures of satisfaction in the Uruguayan Reparations Law, unfortunately, are limited in extent.
GUARANTEES OF NON-REPETITION
Whereas an admission of wrongdoing helps restore victims' dignity, guarantees of non-repetition ensure that those human rights violation will never again occur. Guarantees of non-repetition include, inter alia, judicial, institutional and legal reforms; human rights training; effective control over military and security forces; protection of legal, medical, media and related personnel and human rights defenders; and observance of international human rights. In the Uruguayan Reparations Law, the principle of guarantees of non-repetition is not mentioned.
URUGUAYAN REPARATIONS LAW - ARTICLE 22
Victims of human rights violations have a right to truth, justice and to reparation. States have the obligation to ensure effective enjoyment of these rights guaranteed in international law. Under no circumstances should victims give up any of these rights for an exchange of the other, such as the right to seek justice.
The Uruguayan Reparations Law surprisingly includes Article 22, which prevents a victim who has agreed to receive any form of reparation from seeking legal remedy. Article 22 of law 18.596 reads: "Any [person] who takes advantage of the benefits/reparations allowed under this present law is prohibited from taking future action against the state of Uruguay, in any jurisdiction, whether national, foreign, or international."
Even without other limitations imposed by Uruguay's law 18.596, Article 22 alone delegitimizes the reparations law since it predicates the right to reparations on a waiver of the right to justice. Article 22 can thus be interpreted as an offer of reparations only to those willing to stay quiet. In fact, reparations and the responsibility to accord victims justice are never optional measures, but rather legal consequences of wrongdoings by the state.
Unfortunately the Uruguayan law was approved and entered into force on October 2009. After decades of waiting for justice to be done, some victims might find the decision of whether to exchange possible legal remedies for reparations difficult - some victims might view it as a "better than nothing" deal.
Nevertheless, I do hope that victims will reject this Uruguayan Reparations Law in a symbolic affirmation of their legal rights and dignity and patiently wait (a little longer) for the decision by the Inter-American Court of Human Rights in Gelman [PDF]. Gelman is the first case before the Court against Uruguay, where the state's failure to provide justice and reparations for human rights violations during the dictatorship will be questioned and subjected to international standards. Victims of the Uruguayan dictatorship and international observers of human rights anxiously await and hope for a decision that, inter alia, will shed light on these fundamental principles of reparations.
Tuesday, February 15, 2011
John Medeiros, Hamline University School of Law '14, is an accomplished writer living in Minnesota. He writes about the Fourteenth Amendment's birthright guarantee...
That night Juan called, and his voice just above a whisper. "What's going on?" I asked. "What's the big news?"
"I have to tell you something that I don't want anyone else at school to know. I'm telling you this because you're my best friend - I'm not returning to school after break." He paused and added, "My family is moving back to the Dominican Republic right after Christmas."
Juan was born in the United States, but his parents were not. He and his family returned to the Dominican Republic when he was a baby, and they moved back to the States when he was ten years old. "Why are you moving back?" I asked. "I mean, don't you like it here? Can't you even wait until summer?"
"My father is getting transferred back there," he replied. Then he lowered his voice again and added, "Don't worry about me; I'll be alright."
That was the last I would ever hear from Juan.
When I returned to school after break, our Civics class continued to study the US Constitution. Ironically, we picked up with the Fourteenth Amendment:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
As I looked at the empty chair where Juan used to sit, everything started to make sense. Having been born here, Juan was a citizen of the United States, but his parents were not. It was not long before I realized that saying his father was "transferred" was Juan's way of telling me that his family was being deported.
That was my first exposure to immigration policy's personal impact, and it helps explain why I have spent my professional life studying and working in the field of immigration law. Now, thirty years after I heard them for the very time first time, the words of the Fourteenth Amendment have become part of the public discourse as some members of Congress are attempting to limit the rights of immigrants by advocating the denial of birthright citizenship to those born to undocumented parents in the United States.
Under the Citizenship Clause of the Fourteenth Amendment, all persons born or naturalized in the United States who are also subject to the jurisdiction of the United States are citizens. Much of the current debate turns on the meaning and intention of this clause. The argument put forth is that undocumented immigrants are not under the jurisdiction of the United States, and so the children of undocumented immigrants also do not fall within that jurisdiction. Therefore, such children, although born in the United States, should not be American citizens.
The argument is flawed when scrutinized in context. Upon passage, the Fourteenth Amendment effectively reversed the decision in the case of Dred Scott, a slave who sued in federal court for his freedom. The Supreme Court had held that neither slaves nor free descendants of slaves were citizens, and so the Fourteenth Amendment was enacted to specifically enable African-Americans born in the United States to obtain citizenship at birth.
Additionally, the author of the Citizenship Clause confirmed in his original debates that the clause subject to the jurisdiction of the United States was specifically designed to exclude only foreigners who belonged to families of ambassadors or foreign ministers, and Native Americans who maintained their tribal ties. This was confirmed in a number of cases, including United States v. Wong Kim Ark (1898), which involved a man born in the United States to Chinese parents who were statutorily ineligible for naturalization because of their race. The Court held that Wong Kim Ark, who was born in San Francisco, was, in fact, entitled to birthright citizenship, and stated in dictum that the term subject to the jurisdiction of the United States excluded two classes of people, other than Native Americans: children born of alien enemies in hostile occupation, and children of diplomats of a foreign state. The phrase was never intended to exclude anyone else. (Incidentally, Congress subsequently passed the Indian Citizenship Act of 1924, which granted full U.S. citizenship to Native Americans.)
Opponents of birthright citizenship also argue that because undocumented parents still owe their allegiance to a foreign country, their children who are born in the United States do not owe complete allegiance to the United States and, consequently, should be denied citizenship. But it is important to remember that the framers of the Fourteenth Amendment make no reference whatsoever to allegiance. This is because allegiance is loyalty to the place of one's birth, and not to the citizenship of one's parents.
So while there are some who believe the Fourteenth Amendment should exclude those born in the United States to undocumented parents, history suggests otherwise. However, the history behind the Citizenship Clause of the Fourteenth Amendment doesn't seem to be making its way into the public dialogue, and instead there is a movement underway to reshape the Constitution from a document historically interpreted to grant rights to those living in the United States, to one that limits and even denies those rights. The call is to redefine the Fourteenth Amendment to exclude citizenship for children born in the United States to parents who are undocumented, or in temporary lawful status.
A popular explanation for this movement is that illegal immigrants specifically come to the United States to give birth, to gain citizenship for their children and thus obtain legal status themselves. Misinformed proponents of this theory callously refer to such children as "anchor babies" for illegal immigrants. However, the reality is that most undocumented people come to the United States for economic reasons, and "anchor babies" are simply not part of the immigration trend. Under current law, US citizens must wait until they are at least 21 years of age to petition for adjustment of legal status for their parents. Simply because a child is born in the United States does not mean that the parents are allowed to stay permanently. To the contrary, the US Citizenship and Immigration Services (formerly INS) is not reputed to be an agency designed to keep families together. It was not so with my friend Juan, and it is not so today.
Equally misinformed is the argument that deporting "anchor babies" would decrease overall illegal immigration. In The Demographic Impacts of Repealing Birthright Citizenship, September 2010, the Migration Policy Institute estimates that passage of the House-introduced 2009 Birthright Citizenship Act - which would deny US citizenship to children born to unauthorized immigrants - would actually increase the unauthorized population from its current 10.8 million to 16 million by 2050. Worse still would be effects of implementing a stricter option being explored, under which citizenship would be denied to US-born children with one unauthorized immigrant parent, even if the other parent were a US citizen. In such a scenario it is estimated the unauthorized population would rise to 24 million by 2050. Amending the Fourteenth Amendment of the Constitution to prevent birthright citizenship would only escalate the very problem it is intended to resolve.
All three branches of our federal government have confirmed birthright citizenship, and to eliminate this right would be unconstitutional and impractical. The law has not changed since United States v. Wong Kim Ark, and neither has the Fourteenth Amendment. What have changed, however, are the escalating and complex problems of illegal immigration, and public opinion toward undocumented immigrants. While it is true that our country has an immigration problem, that problem is not with undocumented immigrants, but rather with a broken system in need of significant reform. While we may disagree over our country's immigration policies, we must agree that the way we respond to those policies cannot include tampering with the Fourteenth Amendment. Doing so would show a blatant disregard for the provisions of the Constitution - provisions designed to expand civil rights, not limit them - and would violate over a hundred years of legal progress by undermining the civil victories of our past.
John Medeiros can be contacted via his personal website at http://www.jmedeiros.net/
Tuesday, February 08, 2011
Christian Ohanian, University of North Carolina (UNC) Chapel-Hill Law '11, is a certified legal student at the University of North Carolina's Immigration and Human Rights Policy Clinic. He writes about the difficulty confronting asylum applicants from politically controversial states...
While working in the clinic, I represented an Iraqi citizen who was seeking asylum in the United States. He built a life and raised a family in Iraq long before Saddam Hussein came into power. Shortly after Saddam assumed power, my client left his job in the Iraqi government and found work in the private sector. Years later, Hussein and his government became a focal point for American foreign policy and eventually their actions were considered to be the impetus for an invasion of Iraq. My client became the target of many violent sectarian groups, who found post-invasion Iraq fertile ground for their missions of persecution.
As I began my research, I quickly realized that the facts, stories, stigmas, and policies surrounding Iraq and the US invasion would be impossible to evade in my evaluation of the case. As an asylum applicant under legitimate threat as a targeted professional in Iraq, one would believe that my client's case should be permitted to stand on its own--distinct from every ill-conceived stigma, overarching policy generalization, or "muddied" fact scenario. In my work thus far, it has become a sobering reality that such is not the case.
The bigger picture of US involvement in Iraq was an unavoidable reality in the representation of my client. His time spent working in the pre-invasion Iraqi government presented the first difficulty. It is hard to imagine an immigration officer being able to divorce his thinking from pre-conceived and policy-tinged notions regarding the subject, no matter how mundane my client's position in the former government.
Furthermore, after the first set of deadly threats to his life my client fled to Syria, raising another complicated issue. Relations between the US and Syria are strained and mutually suspicious at best. My client is a simple man removed from any political involvement with either country. Yet, an immigration officer would probably look with skepticism at a significant amount of time spent in Syria after fleeing Iraq. Unfortunately, the time my client spent at a border town near Syria seems to ensnare his story in overarching US foreign policy and political issues. This border town was under the influence of insurgent groups, including Al Qaeda. These insurgent groups are not only vigorously targeted by the US military but are also featured in numerous news headlines and foreign policy articles that reported on circumstances in Iraq.
Does it matter? How un-deservedly "tainted" does the client's story become? How restricted does a client find himself due to the unfortunate reality that his story of persecution intersects with broader security matters of concern to the US government? Is it really possible, however necessary, for an immigration officer to impartially separate the individual client from such high profile stories implicating US foreign policy and security concerns?
The precarious nature of the "bigger picture" of politicized facts that can "muddy the waters" of a client's story necessarily lead to corresponding counseling decisions. When does an applicant's story intersect with too many potentially un-appealing politicized facts? When does that intersection indicate a necessity to re-appraise the strength of the client's case?
A reviewing asylum officer certainly has to take into account the larger context when evaluating an individual applicant's story. However, I fear that in some cases the larger context of well-known stories, facts, groups, leaders, and policy concerns could jeopardize the fair disposition of an individual applicant's case. It seems all too likely that in highly politicized circumstances, the individual's story of persecution could fall victim to the inescapable influence of overarching perceptions, supposed policy concerns, stories, fears, stigmas, and other distorting influences. How do we draw the line between appropriate country conditions pertaining to an asylum applicant and security concerns based on over-politicized and possibly distorting facts? Highly publicized stories and stigmas create a legitimate risk that an asylum officer could be unduly influenced in the evaluation of an individual asylum application.
Tuesday, February 01, 2011
Sara Burhan Abdullah, Pitt Law LLM '08 and JD '11, was a judge at the Iraqi National Rounds for the Jessup International Moot Court Competition. She shares her impressions of Iraqi students and judges' performance...
The Jessup Competition is an International Moot Court competition designed to improve both law students' skills in making arguments before courts and their ability to understand the different concepts of public international law. The Jessup Moot takes the form of a mock proceeding before the International Court of Justice between two fictional countries, with each country being represented by a single law school in each round. The international competition is held in the spring of each year in Washington, DC, and many nations, including the United States, hold preliminary national rounds to determine which of their many teams will qualify for international participation. For security and other reasons, Iraq had not been able to hold a national round until this year. However, through the private efforts of University of Pittsburgh law professor Haider Ala Hamoudi and the funding support of the United States Embassy in Baghdad, Iraq had sent a team from either Suleymania's law school or Basra's law school to previous international competitions.
The dream of providing other Iraqi law schools with the opportunity to participate in the Jessup competition finally came true through the support of the International Human Rights Law Institute and US government funding. Everyone involved in the Jessup Competition, but especially the director of the national round, Kari Kammel, was concerned about the competition's success. The reason for the concern was that Iraq had been culturally and legally isolated for decades, and only two schools had the slightest familiarity with the Jessup competition. Nevertheless, due to the excellent efforts of Executive Director Kammel and others, the competition was an astonishing success.
Having helped Dr. Hamoudi supervise and prepare the Iraqi teams at the international rounds in Washington, DC, over the past five years, I have some sense of what the competition looks like in the US and how students prepare for their rounds. I noticed a number of striking similarities between the international and Iraqi national rounds. For example, I witnessed the same combination of eagerness and nervousness among the students in Iraq as I did in Washington, DC. The students in Iraq were exchanging ideas, making arguments, and brainstorming with their coaches as to how to approach an argument. These preparations and discussions were very similar to those that take place at the international rounds in DC, and they were taking place among students who had never stepped foot out of Iraq.
In addition, I was impressed at how quickly the students were able to grasp and apply the styles and methods of legal argumentation despite limited access to necessary resources in public international law. The Iraqi students had been trained in rote memorization of limited sources and lacked any training in making arguments or developing analytical skills, so I had assumed they would memorize a brief and then be entirely unable to move beyond it if interrupted with a question. For the most part, the reverse was true--the students were most comfortable when asked questions and given the opportunity to respond. They showed considerable ability to make strong arguments despite the limitations described above. The eagerness of the Iraqi students, combined with their surprisingly strong abilities, gave me hope that the competition, and indeed public international law more broadly, has a bright future in Iraq.
Iraqi judges, by comparison, had a harder time adapting to the newer methods of argumentation that were presented in the Jessup competition. This was obvious by the different manner in which Iraqi judges asked questions relative to the participating foreign judges. The foreign judges were mostly former Jessup participants, international law practitioners or law professors and so had more exposure to the competition than the Iraqi judges, who were primarily composed of law professors, in addition to some actual judges. The most prominent Iraqi judge was Judge Rizgar Mohammad Amin, the first judge assigned to adjudicate the former dictator Saddam Hussein.
Because the judges were law professors in Iraq used to dealing with Iraqi law students, they properly understood the Jessup Competition to be a learning experience, and they thought it fit to question students and teach them in the manner to which the professors were accustomed. Thus, the questions directed at competitors by Iraqi judges were more formalistic inquiries into international law rather than inquiries focused on the actual argument being presented by the team. One oft-repeated question was whether it is necessary for a representative of a country before the ICJ to be a lawyer or if other individuals can appear before the international court as representatives of countries. Another frequently asked question concerned the difference in definition between treaty and convention. Although these questions can be important under different factual scenarios, I could not see the relevance of these questions to the facts and legal issues presented in the case. The questions did not so much test the ability of the student to present the best argument, but rather how much ancillary knowledge, irrelevant to the actual case, they happened to possess.
After a week of competing against each other, the two finalists were announced as winners and invited to participate in the international rounds. The two teams, from Baghdad and Nasiriya's law schools, are now in the process of getting ready for visa applications and interviews, which are time consuming and have threatened the viability of Iraqi participation in the past. All of us involved in the competition hope for the best this year.
In short, the Iraqi national rounds were a successful experience despite all the obstacles faced by the administrators and organizers of the competition. The Jessup Moot broadens the horizon of Iraqi law students by introducing them to new developments in international law around the world. It also better trains them in the arena of international law in a manner that is sure to prove beneficial to the country in the future. These consequences are fairly obvious. What was surprising was how firmly interest and desire for skills in international law took hold among these talented Iraqi law students, despite their isolation, lack of resources and absence of sufficient training.
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