Author: arengel

SEAFOOD, SLAVERY, AND THE FISH WITH A STORY

arengel

Thailand is the world’s third largest exporter of seafood and seafood products. The European Union imported more than $1.15 billion worth of seafood from Thailand in 2013, while the value of seafood imports by the United States exceeded $1.6 billion in 2014. If you live in the US or Europe and purchase shrimp at your local supermarket, it likely came from Thailand, and it is just as likely that it came from slave boats. The situation is pervasive, occurring across sectors, from fishers to processors and in different species, so it is not just shrimp but other seafood products as well.

Trafficking of men and boys from Burma, Cambodia, and Thailand onto fishing boats by brokers is widespread. The majority of these boys and men are illiterate, recruited from rural areas where jobs are scarce. Unfortunately, Thai government officials for years have either turned a blind eye or are complicit in these abuses. Even though last year the State Department blacklisted Thailand for failing to meet minimum standards in fighting human trafficking, placing the country in the ranks of North Korea, Syria and Iran, there were no additional sanctions. The United States continues to buy about 20 percent of the country’s $7 billion annual exports in the industry.

Research conducted by the International Organization for Migration (IOM), the International Labour Organization (ILO), Thai academic institutions, international and national nongovernmental organizations, and global trade union federations has uncovered that work on Thai fishing vessels is extremely abusive. Problems include widespread and systematic use of forced labor, frequent physical abuse leading in some cases to extrajudicial killings, excessive work hours ranging up to 20 hours per day, non-payment of wages, inadequate food and medical services, and dangerous working conditions causing serious injuries to workers.

Crewmembers have reported being punched, beaten with metal rods, deprived of sleep, imprisoned without food or water, and forced to continue working after injury. Travel documents are often confiscated and withheld; cases of abandonment are also reported. Violations of fair and promised pay are common, particularly the extraction of “agency fees” and the withholding of pay at the end of the contract period. Recruited crew members may pay up to several times their supposed monthly wage for these “fees”, and there have been reported examples of fishers working without pay for several years.

The Thai fishing industry remains heavily reliant on trafficked and forced labor. Poor and chaotic fisheries management has resulted in the majority of Thailand’s fisheries becoming over-exploited. As boat operators have looked to cut costs, working conditions and wages have suffered, causing many workers to turn away from the industry. This situation has led to a significant labor shortage, with a shortfall estimated to be as high as 50,000 people and increasing. This labor shortage fuels abusive practices in the fishing industry, with employers and brokers resorting to deception, corruption, coercion and violence in order to meet the demand for workers.

Fishing boat owners and captains have regularly resisted efforts to regulate conditions of work on fishing boats, and have denied that abuses occur. The profit margin for them is considerable. Widespread human trafficking and abuse is allowed to continue, in part, because the supply chain remains a black box, even to those within the industry. Even though most distributors, buyers, and exporters of seafood are aware that human rights abuse is a problem in the industry, most of them do not believe it happens in their company’s supply chain.

Consumers are also blind to this situation on many fronts. Between 25 and 70 percent of all fish sold in North America and Europe is mislabeled—wrong species or wrong country of origin. As a result of mislabeling, consumers do not know what kind fish they buy, where it comes from, or the human cost involved in fishing it. The fish we buy and eat do not have a story.

Customers are willing to pay for a story, and that willingness to pay can be a vehicle for profound environmental and social change. For instance, Starbucks tells its customers the story of Fair Trade coffee, and customers at the supermarket buy cage-free eggs and grass-fed beef based on the story behind the products. These labels and the stories they tell are about making the world a better, fairer and more compassionate place, and customers are willing to pay for that.

With regards to seafood, a consumer who understands that the reduced price of seafood at the local supermarket is the result of the slavery and inhumane treatment of those who fish it, or the result of unsustainable fishing practices, might prefer to pay a higher price for seafood caught by a local fisherman who fishes sustainably and who treats its employees with dignity. The story matters.

Bar codes and auditable traceability technology can help the supply chain carry better stories. However, customers must also do their part and demand a more responsible fishing industry even if prices for seafood increase. Some argue that customers will not pay more for their seafood regardless of where it comes from, but fifteen years ago, many argued that no one would pay extra for coffee that delivered a guaranteed price to farmers, and today Fair Trade coffee is everywhere. For those who care about human rights and sustainability, the first step is to ask for the fish with a good story.

 

UNIVERSAL JURISDICTION AND JUSTICE FOR THE VICTIMS: THE CASE AGAINST HISSÈNE HABRÉ

arengel

After a two-decade campaign for justice by the victims, the trial in Senegal of the former Chadian dictator Hissène Habré is set to begin July 20, 2015. Habré will stand trial on charges of crimes against humanity, torture, and war crimes before the Extraordinary African Chambers (the chambers) in the Senegal court system.

Habré seized power in 1982, in a CIA-backed coup, and ruled with an iron fist until his overthrow in 1990. In December 1990, the CIA and state department’s Africa bureau loaded C-141 cargo planes with weapons and proceeded to save the dictator in return for his eight-year collaboration with Ronald Reagan’s covert effort to destabilize Muammar Gaddafi in Libya. Since 1990, he lived with impunity in Dakar for 22 years.

Habré’s regime has been described as oppressive, cruel and inhuman. Souleymane Guengueng, a former bookkeeper recounts how he was held on insignificant political charges for nearly three years. First, he was held in solitary confinement, then packed so tightly with other prisoners they could not even lay down to sleep. Being kept alternately in total darkness or blazing electric light, 24-hours-a-day for months on end, left him nearly blind. He was hung from his testicles after being caught leading prayers for other prisoners. While in captivity he suffered from malaria, pulmonary edema and hepatitis, losing the ability to walk for months. What he suffered exemplified Habré’s regime.

Guengueng survived until he was freed with thousands of other prisoners in December 1990, when a new set of rebels, led by Chad’s current president, Idriss Déby, ousted Habré. Habré escaped to Senegal, with some $12m he had pilfered from national bank accounts, enough for him to live comfortably and buy him political supporters in Senegal to protect him for years.

After his release, Guengueng spent months quietly collecting testimonies of other prison survivors and eventually gathered over 700 testimonies. Eventually, an American Human Rights lawyer, Reed Brody, took an interest in the case, turning those testimonies, years later, into the core of a groundbreaking legal effort by Chadian victims and Chadian and international attorneys to hold Habré accountable for his crimes. Traveling with Guengueng and other Chadian victims, Brody and his team filed the first criminal complaint against Habré in Dakar in January 2000.

Habré’s trial will be the first in the world in which the courts of one country, based on the principle of universal jurisdiction, prosecute the former ruler of another for alleged human rights crimes. The term “universal jurisdiction” refers to the idea that a national court may prosecute individuals for any serious crime against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international, which individual States may act to protect. Generally, universal jurisdiction is invoked when other, traditional bases of criminal jurisdiction do not exist, for example: the defendant is not a national of the State or the defendant did not commit a crime in that State’s territory or against its nationals.

The first precedent for Universal Jurisdiction was seen in the case of General Augusto Pinochet. He was indicted for human rights violations committed in his native Chile by Spanish magistrate Baltasar Garzón on 10 October 1998. He was arrested in London six days later and held for a year and a half before finally being released by the British government in March 2000. The judiciary committee of the British House of Lords (the United Kingdom’s supreme court) concluded that “international law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone.” Pinochet was eventually authorized to return to Chile to face charges for a number of crimes. The interpretation of international law in Ex parte Pinochet grants any magistrate anywhere in the world the power to demand extradition of a person accused of crimes against international law.

The ideal behind the concept of Universal Jurisdiction for international crimes is that it would permit governments to prosecute the perpetrators of crimes against humanity wherever they were found. Mass killers who had fallen from power could be punished regardless of where they were found. In cases where the government of the country where the atrocities took place might be too weak or compromised to prosecute, some government without a history of complicity in the crimes could reach out and punish an international criminal. The thought is that the prospect of being prosecuted anywhere might motivate some rulers to put a stop to massive crimes.

Detractors of Universal Jurisdiction state that it becomes an impediment to national reconciliation procedures set up by new democratic governments to deal with their countries’ questionable pasts. Additionally, they claim that once the Pandora’s box of jurisdiction has been opened, the political pressures on international prosecutions are difficult to control. A good example is Belgium, which, until recently, had a statute providing for jurisdiction over international crimes, whether there was any connection to Belgium or not. Its courts became a haven for political claims against national leaders, claims that had no chance in the country where the events took place. Complainants sought to prosecute Ariel Sharon for abuses in Lebanon, and former president George H.W. Bush for a bombing in Baghdad during the first Gulf War. U.S. The law was eventually amended when Defense Secretary Donald Rumsfeld, threatened to withdraw NATO headquarters from Brussels, Belgian parliament weakened the jurisdiction to the point where it is available only if the victim or the accused is Belgian.

In the case of Hissène Habré, President Obama has publicly praised Senegal’s establishment of the Extraordinary African Chambers to try the worst crimes of Habré’s government. Obama said the United States would provide resources to support the work of the tribunal. Reed Brody, counsel for the victims has stated that “[i]f Hissène Habré’s trial is conducted in a fair and transparent manner it could mark a turning point for justice in Africa.”

After 22 years seeking justice, a trial in this case is also turning point for the victims and perhaps a step in the right direction in the development of justice for international crimes.

ALL THE FUSS ABOUT KILLER ROBOTS

arengel

This week in Geneva, Switzerland, the United Nations’ Convention on Certain Conventional Weapons (CCW) is once again hearing from technical and legal experts on the subject of “Lethal Autonomous Weapons Systems” (LAWS), which are weapons that can make lethal decisions without human involvement—i.e., killer robots.

Parties to the CCW will consider policy questions about LAWS and whether there should be a protocol added to the CCW that would regulate or ban LAWS. Experts will debate what level of “meaningful human control” robots, or any weapon, should be required to have. The conclusions of this meeting could have far reaching ramifications for the future of war.

The following questions have been previously raised by UN experts in a 2013 report:

  • …is it morally acceptable to delegate decisions about the use of lethal force to such [autonomous] systems?
  • If their use results in a war crime or serious human rights violation, who would be legally responsible?
  • If responsibility cannot be determined as required by international law, is it legal or ethical to deploy such systems?

What are killer robots?

That depends on whom you ask. Manufactures of this technology would define a killer robot as, a robot that can make a decision to use lethal force without human intervention. However, Human Rights Watch broadens the definition to include any robot that can choose to use any type of force against a human, even if that force is not lethal. What is agreed is that all LAWS are already regulated by existing International Humanitarian Law (IHL). LAWS that cannot comply with IHL principles, such as distinction (from civilians and combatants) and proportionality (an attack must not be excessive in relation to the concrete and direct military advantage anticipated) are already illegal.

The phrase “meaningful human control” has caused some debate among diplomats. A great deal of the discussion in the LAWS debate is about humans and the term “loops”, which can be explained as follows:

-Human “in the loop”: the robot makes decisions according to human-programmed rules, a human hits a confirm button and the robot strikes.

-Human “on the loop”: the robot decides according to human-programmed rules, a human has time to hit an abort button, and if the abort button is not hit, the robot strikes.

-Human “off the loop”: the robot makes decisions according to human-programmed rules, the robot strikes, and a human reads a report a few seconds or minutes later.

-Finally, there is “robot beyond the loop”, where there is the largest concern. In this case, the robot decides according to rules it learns or creates itself, the robot strikes, and the robot may or may not let humans know.

What is the Convention on Conventional Weapons (CCW)?

Also known as the “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects,” there are 120 nations that are ‘high contracting’ or state parties, including all five permanent members of the UN Security Council.

The CCW was adopted in 1980 and contains five separate protocols on various weapons and explosive remnants of war, already covering non-detectable fragments, mines and booby traps, incendiary weapons, blinding lasers and the explosive remnants of war. The CCW also provided a useful incubator for efforts to address the humanitarian consequences of antipersonnel landmines in the 1990s and cluster munitions in the 2000s. A Protocol VI added to the CCW banning “off the loop” LAWS, might be an option.

The Case for and Against Killer Robots

There are already plenty of examples of how technology has changed warfare. For the military, war robots can have many advantages: They do not need food or pay, they do not get tired or need to sleep, they follow orders automatically, and they do not feel fear, anger, pain or remorse. Furthermore, no one would mourn if robot soldiers were destroyed on the battlefield. The most recent and controversial example of how new technologies have changed war is the rise of drone warfare. But even these aircraft have a pilot who flies it by remote control, and it is the humans who make the decisions about which targets to pick and when to fire a missile.

On behalf of not banning LAWS some argue that robots should be regarded more as the next generation of “smart” bombs. They are potentially more accurate, more precise, completely focused on the strictures of International Humanitarian Law (IHL) and thus, in theory, preferable even to human war fighters who may panic, seek revenge or just make human mistakes.

Meanwhile, Human Rights Watch, in a report released before the CCW meeting, has argued that fully autonomous weapons would make it difficult to attribute legal responsibility for deaths caused by such systems. As the report notes: “[a] variety of legal obstacles make it likely that humans associated with the use or production of these weapons – notably operators and commanders, programmers and manufacturers – would escape liability for the suffering caused by fully autonomous weapons.”

The Campaign to Stop Killer Robots (CSKR), an international coalition working to preemptively ban fully autonomous weapons formed by a number of non-governmental organizations (NGOs) in 2012, advocates for a ban on LAWS similar to the ban on blinding lasers in Protocol IV of the CCW and the ban on anti-personnel landmines in the Ottawa Treaty. They argue that killer robots must be stopped before they proliferate, and that tasking robots with human destruction is fundamentally immoral. The biggest concern is the potential next generation of robotic weapons: “robots beyond the loop,” the ones that make their own decisions about who to target and who to kill without human control, a scary thought, indeed.

THE FEAR OF CYBER ATTACKS, THE GOVERNMENT, AND THE RIGHT TO PRIVACY

arengel

In response to a series of major data breaches at US companies in recent months including Sony, Anthem and Target, President Obama unveiled a series of cyber security proposals in his last State of the Union address in January. Obama followed up on this declaration of intent by signing a new executive order during the Summit on Cybersecurity and Consumer Protection organized by the White House at Stanford University in February.

Obama’s executive order encourages the development of Information Sharing and Analysis Organizations (“ISAOs”), providing legal-liability protection to make it easier for businesses and government to share online threat data specific to their industry or geographic region. The order also increases the role of the Department of Homeland Security in the data-sharing process by permitting it to enter into agreements and coordinate the ISAOs.

Mr. Obama’s renewed focus on cyber security has been mostly welcomed by the tech industry, however, the president continues to encounter some of the same suspicions over the privacy of online data that were so effectively highlighted by the Edward Snowden revelations about the NSA in 2013. Although Cyber terrorism is a reality, the concern is that unless there is a balancing between governmental intrusion and the individual’s right to privacy, people’s rights will be violated as they have in the past.

The right to privacy has been affected previously by extraordinary events around the world such as terrorism. While society has not been willing to sacrifice individual civil liberties lightly, it has done so in circumstances where the prevalent belief was that personal security has been threatened. In recent times, surveillance regimes that have been adopted as anti-terrorism measures have had a profound, chilling effect on other fundamental human rights.

The most drastic change affecting privacy in the laws of the United States occurred in response to the 9/11 attacks, when President Bush signed into law the anti-terrorism statute titled Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, more commonly known as the USA PATRIOT Act. Among other things, the Patriot Act expanded the wiretapping and electronic surveillance powers of federal law enforcement authorities, and increased the information-sharing powers of investigative agencies. It also allowed law enforcement to demand libraries, bookstores, and businesses to produce tangible items, such as papers, books, and records, about persons of interest, while forbidding disclosure of such a demand. It further authorized searches conducted without giving contemporaneous notice of the search or an actual warrant for the search.

At the end of 2005, an article appeared on the front page of the New York Times chronicling widespread monitoring of telephonic and Internet communications by the NSA—National Security Agency.   These intercepts occurred with the direct authorization President Bush, and were undertaken without approval or oversight by the judiciary, beginning shortly after the 9/11 terrorists attacks. This wide-ranging program targeted interception of email and telephone calls with the number of those targeted ranging from the hundreds to possibly thousands. The effect of such wholesale violation of the right to privacy caused uproar among regular citizens who thought that such governmental intrusion on their personal affairs was overreaching and unwarranted.

Acts of terrorism and a fear for our personal security have historically intersected the privacy protections recognized by governments, and at times, served to take a few steps back in the universal recognition of the right to privacy. However, the government’s unsound arguments positing that the only way to offer protection was to infringe in our right to privacy have not been successful in the long term. People have recognized the obvious flaw with the proposition that there must be a trade off between privacy and security. Our willingness to sacrifice our privacy for security has been short-lived, and eventually, the tide has had to turn back by popular demand.

Upon further reflection and discourse on the effect of excessively curtailing civil liberties, the conclusion must be that a balance between security and respect for human rights is necessary in a civilized society. The two are not mutually exclusive; it is possible to demand cyber security and the protection of the right to privacy at the same time. The government must be very careful not to institute measures that will encroach on peoples’ hard fought civil liberties. The efforts made by Obama through his new initiative must carefully be monitored so that the right to privacy of individuals is sufficiently protected both by government and private entities.

MEXICO HAS TO CLEAN HOUSE: BUT THE INTERNATIONAL COMMUNITY MUST HELP

arengel

On September 26, 2014, in the southern state of Guerrero, a group of 80 students from a Rural Teachers Training School in Ayotzinapa were attacked by the municipal police of Iguala. According to reports of witnesses in the area, the police opened fire without warning and then captured 43 young men. It was later revealed that the 43 men were subsequently turned over to a criminal gang known as Guerreros Unidos (United Warriors), which then caused the disappearance of all 43. It is known that at least one student was tortured, his eyeballs taken out and his face skinned. To this day, the actual whereabouts of the missing students remain unknown.

It is hard to believe that police could be involved with criminal gangs and actively participate in such a heinous crime, but it is even worse because in Mexico corruption goes beyond the police. Mexico’s Attorney General Jesus Murillo Karam found evidence that Jose Luis Abarca, the arrested former mayor of Iguala, and his wife were working with Guerreros Unidos and ordered police to attack the students because the mayor feared they would disrupt an event to promote his wife’s political ambitions. In addition to the mayor of Iguala and his wife, several local police officers were also on the payroll of the criminal organization, and dozens were believed to be involved in the kidnapping and alleged murder of the students.

The disappearance of the students and the protests throughout Mexico in connection with them has shocked the world. The White House, Pope Francis and the EU have all taken up the matter in recent public statements. However, the tragedy of the students’ disappearance is miniscule as compared with the broader problem Mexico has with crime and the drug cartels that dominate the landscape of the country from one end to the other.

Mexico is the third largest poppy producer in the world, and 60% of it is grown in Guerrero state alone. Guerrero is considered a “narco state” and the war between cartels there has been savage. Guerreros Unidos fights other gangs such as La Familia and Los Rojos for control of the smuggling routes. So, in Iguala, a Guerrero key city for drug trafficking, disruptions to average citizens are part of every day life. However, what goes on in the state Guerrero is only part of a much broader and serious problem across the whole country.

In the last eight years, in the context of the war against drugs, about 120,000 people have been killed, more than 30,000 have disappeared, and a quarter of a million have been displaced in Mexico. A UN report estimated that 17,958 people were killed worldwide in terrorist attacks in 2013. The Mexican government reported that there were 31,532 homicides in the country between January and November of 2013 including 16,736 labeled as “intentional” murder and 14,796 as “negligent” manslaughter. This figure released by the Mexican government does not take into account individuals who have disappeared but not been labeled yet homocides.

A major investigation into mass graves in Mexico found the corpses of 24,000 people, all of them related to “narco crimes” of one type or another. Entire cities and towns have erupted into war zones replete with military checkpoints and drug cartel roadblocks. Armed with military grade weapons, including grenade launchers, the drug gangs are an equal match for Mexican soldiers and those police who have not been corrupted and are still willing to fight the gangs.

Given this reality, it is hard to distinguish between criminals and law enforcement. Many local politicians, federal and state lawmakers, party leaders, police chiefs and military bosses are closely tied with or identified with the criminal gangs. Drug cartel assassins, the military, and the police have all committed atrocities and violated human rights. Dismembered body parts have been left on streets or found decomposing in barrels of acid. Dead bodies with mouths duct taped often hang from commuter bridges. Women are raped and murdered, and journalists who expose law enforcement corruption are kidnapped and killed. People are afraid to report any crimes for fear of reprisals, and the current rate of unsolved murders is somewhere between 96 and 98%.

Mexico’s largest and most powerful drug gangs are the Zetas and the Sinaloa cartel. The Zetas operate in more than half of Mexico’s states and overtook their rivals (the Sinaloa cartel) in 2012 in terms of geographic presence and control. The Zetas’ brutal violence gave the gang an advantage over the Sinaloa cartel, which has always preferred to use bribes (mainly to police and politicians) to acquire territory and take over drug smuggling routes. Although the arrests of Zeta leader Miguel Ángel Treviño Morales in 15 July 2013, and of Gulf cartel (the oldest Mexican drug gang) leader Mario Armando Ramirez Treviño in 17 August 2013, were expected to have an impact on their respective organizations and on the overall problem, there has been no decrease in drug related violence since their arrests.

Despite President Enrique Peña Nieto’s stated efforts and various initiatives to combat drug cartels, drug related violence in Mexico continues to increase.  Before taking up office, he said he would break with the approach of Felipe Calderon, his predecessor, who had deployed the army to go after cartel kingpins and had declared “war” on the drug gangs. Mr. Peña Nieto promised a lower-profile approach aimed at tackling the violence on a local level by setting up a national police department to handle drug related crimes. However, when the violence escalated in Michoacan, he too sent the army to back up federal and local police forces. He also decided to strike a deal with vigilante groups, allowing them to keep their weapons as long as they agreed to be integrated in the official security forces.

As most nations focus on events in Syria, Egypt, and Iran, another violent struggle that is constantly taking human live is taking place in Mexico. Despite enormous casualties, the turmoil in Mexico does not receive nearly the level of scrutiny or attention that conflicts in other countries do. Everyone recognizes that Mexico has a serious problem with the drug cartels but there has been no concerted international initiative to eradicate it as there has been with terrorism.

The drug problem in Mexico is reminiscent of the drug problem that Colombia had in the nineties. Colombia was the world’s largest exporter of cocaine and heroin and a focal point for money laundering and arms trafficking in the Western Hemisphere. Its government had waged a losing battle against insurgents and drug traffickers for over two decades, and drug-related violence was steadily on the increase throughout the early nineties.

In 1999, the Clinton Administration backed the then newly elected Colombian President Andrés Pastrana’s agenda to curb drug smuggling. “Plan Colombia” included provisions for more aggressive eradication and interdiction efforts, encouraging rural guerrillas to disarm through peace talks, replacing coca farmers’ lost income with alternative crops and employment programs, and strengthening the country’s historically weak government. Of the plan’s initial $7.5 billion cost, the Clinton Administration committed $1.3 billion for eradication and interdiction, the European Community was asked to commit $2 billion for alternate crop development and government reform, and Colombia committed $4 billion overall to the plan. By 2012, the US had spent nearly $8 billion on the initiative.

Since Plan Colombia began in 2000, the positive changes in the security situation in Colombia are undeniable. Under the rubric of “democratic security,” developed by Álvaro Uribe, Colombia’s two-term president (2002–2010), the presence of the national police was extended throughout the country, to all of Colombia’s 1,300 municipalities. Due to the strengthened capacity of Colombia’s security forces and vastly improved intelligence capabilities, kidnappings declined between 2002 and 2009, from nearly 3,000 to just over 200 annually, and killings were reduced by nearly half in the same period. President Juan Manuel Santos, who took office in 2010, built on the foundation established during the Uribe administrations, and also emphasized extending the permanent, regular presence of security forces in small towns. Plan Colombia is today seen as a success for Colombians and for those who supported the initiative.

The situation in Mexico is difficult but not hopeless. Based on the experience of Colombia, there is reason to think that with help, Mexico can also win the war against the cartels and become a safer place. However, the international community must get involved. Merely analyzing the Mexican situation and doing nothing to help should not be an option; the human costs are too great.

 

 

Why have the Girls Kidnapped by Boko Haram still not been rescued?

arengel

On April 2014, in the northeastern Nigerian village of Chibok, Boko Haram militants abducted 276 girls; seven months later, more than 200 remain in captivity. Boko Haram leader Abubaker Shekau recently released a video mocking any attempts at a rescue. With regards to the girls, he stated: “[w]e have married them off … [t]hey are all in their marital homes.”

Even after all the international outcry and support for the girls when the kidnapping occurred, and Nigeria’s president vows to rescue the girls, why are they still in captivity?

Boko Haram is a powerful religious sect in the north of the country that has claimed thousands of lives over the years in its violent campaign to create a religious state. Bombings, shootings and kidnappings have become common events, and the group is estimated to control an area of northeast Nigeria the size of Rhode Island.

An important reason the girls have not been rescued is due to Nigeria’s failure to effectively counter Boko Haram from a military/policing standpoint. The military has a bad track record when it comes to fighting the militant group. A day after the abduction, they claimed to have rescued the girls, but later had to retract that claim. Then, in May 2014, they released a statement saying they knew where the girls were being held, but would not use force to rescue them. And in a tragic incident early last month, several Nigerian troops were killed by their own air-strikes aimed at Boko Haram hideouts.

Distrust of the Nigerian military from the civil society also contributes to the continued failure in dealing with Boko Haram.  In Nigeria, many civilians consider the Nigerian military to be as bad as Boko Haram when it comes to human rights violations, even in the face of the continued reign of terror that is perpetrated in the north of the country by the terrorist organization. In order to capture key Boko Haram leaders and to cut off funding sources that might weaken the militant group, it would be essential for the government to win the support and trust of communities in that part of the country. Many of these communities feel abandoned by the central government, terrorized by Boko Haram, and yet they still do not trust the military—which makes gaining any traction in the fight against the group extremely difficult.

This poor record on human rights of the Nigerian military also hinders international efforts to lend a hand in the fight. Because of the poor human rights record of the Nigerian military, other countries, including the United States, are hesitant about cooperating more in their efforts to rescue the girls. The US and other countries are concerned about how much they can cooperate because they do not want to be associated with the kind of abuses that have already been documented in connection with the Nigerian military.

Phumzile Mlambo-Ngcuka, the Executive Director of UN Women and a United Nations Under-Secretary-General has said that, “[o]ur world must not forget these adolescent girls…. [t]he world must come together and make every possible effort to rescue these girls and bring their captors to justice. We cannot and must not move on with this humanitarian tragedy still unresolved.” This is a statement with which everyone can agree; and the parties involved, including the Nigerian government, its military, and other nations must make more of an effort to ensure that the girls are returned home soon. We must not forget these girls.

 

 

 

The Grand Jury Process in the US: Does it Work?

arengel

Michael Brown, an unarmed teenager, was shot and killed on Aug. 9, 2014, by Darren Wilson, a police officer, in Ferguson, a suburb of St. Louis, Missouri. On Nov. 24, the St. Louis County prosecutor announced that a grand jury had decided not to indict Mr. Wilson.

On July 17, 2014, Eric Garner, 43, was stopped on a street in New York on suspicion of selling loose, untaxed cigarettes. After a confrontation, police officer Daniel Pantaleo placed his arm round Mr. Garner’s neck and wrestled him to the ground. Mr. Garner became unresponsive and later died. A grand jury also declined to indict officer Pantaleo.

Many people around the world are scratching their heads, wondering how is it possible that two men died at the hands of police officers and the officers have not been charged with any wrongdoing. These concerns and questions are accentuated by the inescapable reality that in each of these cases the officers are white and the dead men black. How come these two different grand juries, in different parts of the country, failed to charge the officers to ensure a proper trial and a full airing of the facts surrounding the deaths? Many have asked: what is a grand jury, anyway?

The grand jury plays an important role in the American criminal system. Its role does not involve a finding of guilt or innocence of a party; instead, a prosecutor works with a grand jury to decide whether to bring criminal charges or an indictment against a potential defendant. Grand jury members may be called for jury duty for months at a time, but need only appear in court for a few days out of every month. During that time, they listen to testimony and review evidence presented by the prosecutor. Finally, they decide if charges should be filed against the potential defendant. A grand jury is in some ways similar to a trial jury because it is made up of civilians called for duty by the justice system. However, while regular trial juries are usually made up of 6 or 12 people, a grand jury is composed of somewhere between 6 to 23 people depending on the state.

The grand jury that weighed whether to charge the officer involved in the death of Eric Garner heard from 50 witnesses and saw dozens of exhibits, including four videos, before declining to indict. The grand jurors in the Ferguson case heard 70 hours of testimony from roughly 60 witnesses, and they confronted a number of forensics reports, police radio logs, medical documents and tapes of FBI interviews with bystanders. In both cases, after reviewing all of the evidence presented by the prosecutor, and having been instructed on the law applicable to the case, the grand jurors declined to indict.

Under the civil law system, found in 60% of the world, including Europe and Latin America, a judge makes the decision of filing charges against a defendant after he or she has taken testimony from police officers, victims, the accused and other witnesses, and has seen the available evidence relevant to the case. It is unlikely, that under the civil system, and given the controversial racial issues surrounding the two cases, officers Wilson and Pantaleo would not have been indicted. Even if after the trial they had been found not guilty, there would have been a trial. This is largely due to the inquisitorial nature of the proceeding where if the judge finds any evidence of guilt the charge is sustained and the case moves forward to the trial phase. The prosecutor has little or no role in that determination.

There are many benefits to the grand jury system. Historically, its purpose was to protect citizens from unfounded accusations whether from the government, partisan passions, or personal enmity. The grand jury is seen as affording protection to the individual from arbitrary and unjustified prosecution launched solely by one biased official, the prosecutor. Additionally, the grand jury can act as an investigating agency, having the power to subpoena records, documents, and witnesses. Issues such as organized crime, public corruption, or other areas where prosecutors might be unwilling to look can be investigated and brought to trial. In 1933 a Cleveland grand jury exposed a corrupt police and prosecution system; and between 1937 and 1938, a Philadelphia grand jury was responsible for the ultimate correction of widespread police misconduct. The grand jury also helps prosecutors by allowing them to test their case before they present it to a trial jury.

However, in recent times, the grand jury system has faced a great deal of criticism. For one thing, grand juries are inefficient. Grand jurors are not trained in the law, therefore, the average grand juror is unable to direct questions to genuine relevancies or to form a definite judgment as to the evidence presented. Most of the time, the grand jury merely acts as a rubber stamp for the prosecutor, hearing only the witnesses selected by him/her, and assuming that the mere making of an accusation justifies prosecution. Likewise, if the prosecutor presents the evidence, or if the judge explains the law, in a way that benefits the potential defendant (as if appears to have occurred in the Ferguson case), there would be no indictment. Overall, the effectiveness of the grand jury system seems to be in question.

The grand jury is not the only way to indict in the United States. Prosecutors in some states can charge a potential defendant by information, an indictment prepared by the prosecutor based on police testimony and reports, as well as other evidence pertinent to the case. Although some states by statute or their constitution provide that criminal proceedings shall be only on grand jury indictment, others have the two systems as alternatives regardless of the crime charged. In between are a number of states neither wholly allowing nor disallowing the information, but permitting its use in a variety of circumstances. It is interesting to note that when information has been adopted as a process to charge a potential defendant, no state has later abandoned or rejected it. To the contrary, it has almost completely supplanted indictment by a grand jury. In states where changing a defendant is permitted by way of information or by grand jury indictment, some argue prosecutors choose to utilize a grand jury when they want to evade the responsibility of charging a controversial figure, like in the case of politicians, police officers, etc.

It is clear that a large number of people believe that the grand juries in both the Ferguson and Garner case erred by not charging the officers, and therefore, not allowing the case to be presented to a jury to determine whether their actions were warranted. However, the more important issue is whether the grand jury system works. It might be that grand juries had an important purpose once, but have become obsolete and are now more detrimental than beneficial to the fairness of the criminal system in the US.

 

 

THE UNITED STATES AND SOMALIA HAVE SOMETHING IN COMMON: THEIR FAILURE TO RATIFY THE CONVENTION ON THE RIGHTS OF THE CHILD

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Today we celebrate the 25th anniversary of the U.N. Convention on the Rights of the Child (CRC), the world’s most universally ratified human rights treaty. The treaty requires the commitment of states that embrace it to do all possible to ensure children’s wellbeing, dignity and protection. The U.S., accompanied by Somalia and South Sudan, are the only three countries that have failed to ratify this important instrument of international law. One hundred and ninety-four nations – including all of America’s closest allies — have ratified the CRC. To say that the US is in bad company is an understatement.

The CRC was adopted by the UN General Assembly in 1989 and became one of the most rapidly and widely adopted human-rights agreements. The United States signed it in 1995 but never ratified it. Signing a treaty implies that a country endorses its principles, whereas ratification means committing to be legally bound by it. Treaty ratification under US law requires that after the President sends the treaty to the Senate it must be approved by a two-thirds majority, the same standard required for a Constitutional amendment. The Convention on the Rights of the Child has never made it to a vote.

The Convention upholds the ideal that all children, everywhere, have the same human rights to survive and thrive, to learn and contribute to society. The CRC recognizes every child’s right to develop physically, socially and mentally to his or her fullest potential, to be protected from discrimination, exploitation, abuse, discrimination, and violence; to express his or her views freely and to participate in decisions affecting his or her future.

Most American laws are already consistent with the ideals of the CRC, but not all. A notable exception is that in the United States children under 18 can be incarcerated for life without parole. Since the treaty prohibits cruel and degrading punishment of children, those laws may be deemed in contravention of the treaty. Opponents of the treaty say it would usurp American sovereignty. Although America has laws against child abuse, a third of states allow corporal punishment in schools and none bans it at home. Parent-rights groups claim the treaty would undermine parents’ authority, particularly over religious and sex education.

Studies by the Children’s Defense Fund, UNICEF, and others show that, relative to its wealth and compared to other industrialized countries, the U.S does not fare well with regards child poverty, teen birth rates, low birth weight, infant mortality, child victims of gun violence, and the number of minors incarcerated. It is incomprehensible how the richest nation on earth allows one out of six children to live under the poverty level; how its laws permit a child to be killed by guns every three hours; or how so many children and families live without basic health insurance.

Ratification of the CRC in itself would not immediately change the situation of children in American. However, it might help establish a national framework to establish clear objectives that the federal and state governments, private organizations, and individuals, can use to shape policies and initiatives to better meet the needs of children and their families.

Internationally, ratification of the CRC would help enhance U.S. standing as a global leader in human rights. Additionally, as a party to the Convention, the U.S. would be eligible to participate in the Committee on the Rights of the Child (which is the international body that monitors the CRC’s implementation), and work toward strengthening further progress for children in all countries.

On behalf of President Bill Clinton, Madeline Albright signed the CRC in 1995, signaling the U.S. government’s intention to move toward ratification. But the George W Bush administration took no further action. President Obama has done nothing tangible towards getting the treaty ratified by the U.S. Senate.

As a presidential candidate in 2008, referring to the CRC, Barack Obama underscored the importance of the US returning “[…] to its position as a respected global leader and promoter of human rights” and promised to “[…] review this and other treaties to ensure that the U.S. resumes its global leadership in human rights.” Over 100 CEOs and leaders of prominent American child welfare organizations and faith-based groups have made a joint appeal to President Obama to order such a review.

As we celebrate the 25th anniversary of the CRC, many of us hope that the United States will join the international community in embracing the CRC as a safeguard for the defense of children’s rights and well being everywhere.

JUST WHEN YOU THOUGHT IT WAS SAFE, WE LEARN OF POSTAL MAIL INTERCEPTING

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The New York Times http://nyti.ms/1Dnh0RF recently published an article in which it was reported that the US Government that had nearly 50,000 requests to the US Postal authorities to intercept mail approved during 2013. According to the report, the surveillance program, known as “mail covers,” has been in place for many years. What essentially occurs is that the law enforcement agencies or the Postal Inspection Service make the initial request and postal workers then record all the information on the outside of the envelope before delivering the mail. The scope of the intercepts increased significantly in 2013 raising concerns, as cited in the Times article, about how little oversight there is of the program and how postal workers are called to make the ultimate decision about the legitimacy of the request.

Such intercepts of mail may seem at first blush not to involve a violation of constitutionally protected rights as the mail is not opened by postal workers—which would absolutely require a warrant. However, when one considers the Supreme Court jurisprudence on constitutionally protected searches, the answer is not quite so clear. Recall that what is being done here is targeting an individual’s mail in order to gain intelligence information about that target’s communications, which may then be used to draw other conclusions or even to obtain warrants. The discussion in United States v. Jones, 132 S. Ct. 945 (2012), the landmark GPS case, is very instructive on this point particularly since Jones involves the collection of data. As Justice Sotomayor wrote in her concurring opinion, “[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information

voluntarily disclosed to third parties.” This reasoning which extends accepted Fourth Amendment thinking which centers on the expectation of privacy as set forth in Katz v. United States, 389 U.S. 347 (1967) based on the invasion of your private space. This would allow a constitutionally protected privacy right to things that lie outside your private space such as the writing on the outside of your correspondence, which although voluntary disclosed to a third party, the postal service, is not intended for prying eyes.

Moreover, these “intercepts” of the mail may run afoul of federal law. Under 18 USC § 1703 any postal employee who “unlawfully secretes, destroys, detains, delays, or opens any letter….shall be [subject to a fine].” How these scans are actually done and whether the mail is removed from the ordinary stream of mail may bear on any such application, but it is definitely worth considering.

In the end, these new revelations are just further confirmation of the US government’s ongoing efforts to obtain information on individuals’ outside the judicial framework laid out for constitutional searches. The government continues to use tools that are subject to little or no oversight to collect information and in effect conduct surveillance on US citizens and thereby further encroach on privacy.  In historical context, the infringement into the mail bag seems particularly troubling given the founding fathers’ concerns about the absolute power of the monarchy and its ability to encroach on the life of the citizenry when they wrote that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

By Ivan Mercado