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

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

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

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

Blasphemy Laws and the case of Aasia Bibi

Yesterday, a two-member bench of the Lahore High Court (LHC) upheld the death sentence given to Aasia Bibi, a Christian woman convicted in 2009 of blasphemy.

On June 19, 2009, in a village near Nankana in Pakistan, Aasia Bibi, 50, a mother of five, was jailed after being accused by her neighbors of making derogatory remarks about the Prophet Mohammed. According to her neighbors, she was working in a field when she was asked to fetch water. Muslim women laborers objected, saying that as a non-Muslim she was unfit to touch the water bowl. She entered into a heated debate with her Muslim colleagues, which is when she is alleged to have made the blasphemous remarks.

A few days later, the co-workers went to a local cleric and recounted the blasphemy allegations. Shortly thereafter, Bibi was incarcerated and charged with blasphemy. During her trial, recorded statements of eight prosecution witnesses were presented, and on November 8, 2010, she was sentenced to death by hanging. Bibi became the first woman to be sentenced to death under Pakistan’s controversial blasphemy law.

In Pakistan, Section 295-C of the Pakistan Penal Code (PPC), which was enacted in 1986, mandates capital punishment for “use of derogatory remarks in respect of the Holy Prophet.” This blasphemy law has become an all-purpose tool in the service of intolerance. Even though there are parts of the law could technically serve to protect all religions from blasphemy, only the Muslim majority has invoked the provision against the Christian minority.

Bibi’s case attracted the attention of then Punjab governor Salmaan Taseer, who visited her in jail and denounced her conviction as well as the blasphemy law. A couple of months later, Taseer was killed by his own bodyguard Mumtaz Qadri. Another high-profile politician, minorities minister Shahbaz Bhatti was also murdered in 2011 after calling for reforms to the blasphemy law and describing Aasia Bibi’s trial as flawed.

According to Pew Research, an American research firm, 22% of countries have laws that penalize blasphemy or the insulting of religious symbols. Most of these countries are Muslim and the laws prohibit insults to Islam’s prophet or holy book. However, the list also includes other countries where old laws banning blasphemous or religiously disrespectful speech have remained on the statute books, albeit rarely if ever invoked. Such countries include Denmark, Greece and Germany. As recently as 2009, Ireland introduced a blasphemy law which penalizes “the publication or utterance of blasphemous matter” with a fine of up to €25,000. This law covers blasphemy to other religions as well as Christianity.

As for Bibi’s case, a two-judge appellate panel has dismissed her appeal, but her attorneys can still appeal the case to the Supreme Court for further review.

 

NO EASY ANSWERS FOR THE QUESTION OF WHETHER TO PAY RANSOM FOR HOSTAGES

In recent weeks, Islamic State militants have decapitated American and British hostages, while four French journalists held by some of the same captors were released earlier this year. A former U.S. ambassador to Mali has said the French government paid $17 million to free the French hostages who were kidnapped in Niger in 2010 and subsequently handed over to Al Qaeda.

The latest hostage shown in an ISIS propaganda video is British journalist John Cantlie. In the video Cantlie says European hostages were freed because of actions taken by their governments. The assumption is that the actions to which he refers have to do with paying a ransom for the release of hostages. That is something Canada, Britain and the U.S. have asserted they will not do. The killing of the American journalist James Foley, a few months after the release of his European colleagues held captive alongside him, has underlined the disparities in national policies towards paying ransom, and leads us to examine the merits of such policies.

Hostage-taking is defined under international law (International Convention Against the Taking of Hostages, adopted December 17, 1979) as the seizing or detaining and threatening to kill, injure, or continue to detain a person in order to compel a third party to do or abstain from doing any act as an explicit or implicit condition for the release of the seized or detained person. In 2013, all major western countries signed an accord reinforced by a UN Security Council resolution, not to pay ransom to terrorist groups for hostages. However, by all appearances, only the US and the UK have stuck to that commitment. Other European states – including France, Italy, Spain and Germany – have found ways of channeling money to militant groups in exchange for the release of their citizens.

According to reliable sources, Al Qaeda and its direct affiliates have taken in at least $125 million in revenue from kidnappings since 2008, of which $66 million was paid just last year. The countries that have a policy of not paying ransom for hostages claim that payment of ransom money has unintended but inevitable consequences. The most obvious is that the money paid funds terrorist organizations and furthers their goals. Additionally, the paying of ransom inflates the price for other captives, putting the cost beyond the reach of families or employers trying to negotiate privately.

But those who question the policy of not paying ransom argue that when a human life is at stake a government has an obligation to do anything in its power to save that life. On July 31, 2009, three Americans, Joshua Fattal (27), Sarah Shourd (32), and Shane Bauer (28) were taken into custody by Iranian border guards for crossing into Iran while hiking near the Iranian border in Iraqi Kurdistan. Iran subsequently claimed the three were spies but was never able to offer any evidence to support its contention. Sarah Shourd was released 14 months later on “humanitarian grounds.” Fattal and Bauer were convicted of “illegal entry” and “espionage” two years after their arrest and each sentenced to eight years in prison. However, both were released on September 21, 2011 after payment of 5 billion rial (about US$465,000) bail which was arranged by the Sultan of Oman. Regarding the US policy of not paying ransom for hostages, Fattal has said that “[a]s someone who was held and who was released in part because of a ransom, it seems like it’s important to have the U.S. government be supporting U.S. citizens abroad.”

Those against giving in to the terrorists demands argue that paying ransoms backfires because once a ransom gets paid, the terrorist group has an incentive to take more hostages from your country.  So if a country’s goal is to prevent its citizens from being kidnapped by terrorist groups, the argument goes, the wisest thing to do is to set a policy of not paying ransoms. If terrorist groups think the country will pay, they will be likely they are to abduct its people. On the other hand, given the way these kidnappings often take place, namely, that terrorist groups just kidnap a group of people, often not knowing their nationalities, and then decide what to do with their captives, the question of incentive to kidnap depending of nationality is irrelevant.

There are no easy answers to the question of whether to pay ransom to terrorist groups for hostages; however, one has to wonder, if terrorists kidnapped President Obama’s daughters would a ransom be paid? Would a third country be given authority to negotiate their release? Or would their fates be determined by their captors’ wishes?

 

 

 

 

 

TREATMENT FOR EBOLA AND THE COLOR OF THE SKIN

More than 4,000 people in Guinea, Liberia, Nigeria, Senegal and Sierra Leone have contracted Ebola since March, according to the World Health Organization. To date, more than 2,300 people have died, mostly in West African countries.

ZMapp, an experimental drug to treat those infected by the Ebola virus has been developed by the biotech firm Mapp Biopharmaceutical Inc., based in San Diego. So far, there are some individuals who have been provided with the experimental drug. Two American aid workers, who were the first patients treated for the Ebola virus at a hospital in the United States, recovered from the disease. William Pooley, the first Briton to contract Ebola during the outbreak, was given the experimental drug ZMapp and also recovered. However, father Miguel Pajares, a Spanish Catholic priest who contracted the disease in Liberia was also treated with the experimental drug but he did not respond and died of Ebola on August 12. More recently, on Sept. 5, an American doctor who was infected with the disease arrived in the United States for treatment. In total, 5 out of 7 people treated with ZMapp have recovered.

Mapp Biopharmaceuticals said in a statement that its drug, Zmapp, was only identified as a possible Ebola treatment in January of this year, and has not yet been evaluated for safety in humans or approved by the US Food and Drug Administration. However, while it is true that the FDA must grant permission to use experimental treatments in the United States, the FDA does not have authority over the use of such a drug in other countries, therefore, in theory, the antidote could be administered in other countries with their government’s permission.

As people in Africa continue to die of the disease some have wondered why the experimental drug has not be made available to them. Should untested, experimental drugs to combat Ebola be made widely available?

There are other issues that appear of concern to those studying the spread of Ebola. The WHO says conventional means of controlling the outbreak, which include avoiding close physical contact with those infected and wearing personal protective equipment, are not working in African countries. The reason could be linked to burial practices, which can include touching the body and eating a meal near it. There are also not enough resources in the affected countries to treat Ebola patients. The aid agency Medecins Sans Frontieres has expressed the frustration of health workers at the largest treatment centre in Monrovia, Liberia, being completely overwhelmed with the lack of medical supplies and about not having sufficient beds to treat people infected, having to turn people away who might be infected with the virus.

Some have argued that the seriousness of the current Ebola outbreak means there is a moral imperative to abandon normal stringent testing and get the experimental drugs to sufferers as quickly as possible. There are those who even go to the extent of hinting at an underlying racism in the administration of the Ebola experimental treatment. They argue that African lives are worth less than Western ones, and that it is highly likely that if Ebola were now spreading in Western countries, public health authorities would give at-risk patients access to experimental drugs or vaccines.

However, the issue surrounding the moral obligations other countries might have about providing help to those African counties affected by the disease is not limited to the ethics of making widely available an experimental drug to people in Africa, but also about the moral imperative of providing help with the basic resources needed to combat the disease, such as hospitals, beds, medical supplies, etc. These are resources easily available for Western governments and for which no FDA approval is required.

It is difficult to fathom that there would not be a massive response to such a public health situation if the same circumstances were found in Europe, the US or some other place with greater impact on the global economy. The reality is that the response to the spread of Ebola in West Africa has been lethargic, poorly coordinated and devoid of a sense urgency that should always be present when human lives are in peril.

 

Ugandan’s notorious Anti-Homosexuality Act is overturned but for the wrong reasons

A Ugandan constitutional court declared the country’s anti-gay law illegal. The reason was that parliament did not have a quorum when it was passed. The five judge constitutional court ruled that the speaker of parliament had acted illegally when she allowed a vote on the measure despite the lack of a quorum when the bill was passed. They also found the speaker ignored objections by the prime minister to this effect.

The anti-gay bill, which has been very disputed by international rights groups (and discussed previously in this blog), was signed into law in December by President Yoweri Museveni. The bill provided for homosexuals to be jailed for life, outlawed the promotion of homosexuality and obliged Ugandans to denounce gays to the authorities or be charged with promotion of homosexuality.

Anti-homosexuality sentiment is prevalent in Uganda, and critics have said that Mr. Museveni signed the law to win domestic support ahead of a presidential election scheduled for 2016, which will be his 30th year in power. But Western nation opposed to the bill responded with aid cuts to Uganda’s government in protest since the law was passed. Rights groups say the law triggered a sharp increase in arrests and assaults of members of the country’s lesbian, gay, bisexual and transgender (LGBT) community

The government could call for a new session with quorum or appeal the ruling in the Supreme Court.

HUMAN RIGHTS LAW, THE ISRAELI-PALESTINIAN CONFLICT AND THE KILLING OF CIVILIANS

Since the onset of the ground invasion of Gaza 10 days ago the total Palestinian death toll has risen to 1,058 after 147 bodies were recovered from ruined buildings over the past day (28 July 2014). Israel also announced that another soldier was killed, bringing its total military losses to 43. To this one should add the three civilians that have been killed in Israel by rockets fired from Gaza.

The United Nations Children’s Fund (UNICEF) has released a report showing that 218 children – some as young as three months old – have been killed in Gaza, and children comprise 21 per cent of the Palestinian killed to date. Many people in Gaza, Israel and the world are horrified by the death of civilians during the conflict. No one should be surprised about this outcome; armed conflict inevitably results in death, and not just the death of soldiers, but also of civilians. However, the Palestinian Authority,  Hamas, and the Israeli governments have been guilty of serious human rights violations for some time prior to this latest renewal of armed hostilities.

In 2009, the U.N. Human Rights Committee (“HRC”) commissioned a fact-finding mission to investigate all violations of international human rights law and international humanitarian law that might have been committed at any time in the context of the military operations that were conducted in Gaza during the period from 27 December 2008 and 18 January 2009. The fact-finding mission (known as the “Goldstone Report”) found Israel liable for several violations during the 2008-2009 Gaza Conflict. Specifically, the mission found violations of the: (1) International Covenant on Civil and Political Rights (“ICCPR”), (2) International Covenant on Economic, Social and Cultural Rights, (3) International Convention on the Elimination of All Forms of Racial Discrimination, (4) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”), (5) Convention on the Rights of the Child, and (6) Convention on the Elimination of All Forms of Discrimination against Women.

Hamas, the Islamist political party that holds the majority of the seats in the Palestinian parliament, and notoriously hostile toward Israel, has been designated by the European Union, the United States, and Israel, a terrorist organization. It has been estimated that 1,750 rockets and 1,528 mortar bombs were fired from the Hamas-ruled Gaza Strip against communities in southern Israel in 2008 alone. Hamas’s leadership in Gaza has led to a substantial increase in hostilities toward Israel. Since Israel’s withdrawal from the Gaza Strip in August 2005, Palestinian groups, including Hamas, Fatah, Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine, the Democratic Front for the Liberation of Palestine, and the Popular Resistance Committees have indiscriminately launched more than 6,000 mortar bombs and rockets on Israel. With no more than a handful of possible exceptions, virtually all the attacks have been on civilian targets as much of the artillery used has little or no guidance or military targeting.

Palestinian and Israeli attacks in Gaza clearly violate many provisions of international human rights law and international humanitarian law. In fact, the attacks violate one of the most basic rules of international humanitarian law: the rule of distinction, which requires combatants to aim all their attacks at legitimate targets—enemy combatants or objects that contribute to enemy military actions. Violations of the rule of distinction constitute war crimes.  One of the corollaries of the rule of distinction is a ban on the use of weapons that are not aimed at legitimate targets. The weapons being used by both sides have been launched in areas where civilian casualties were likely and should have been expected. Such indiscriminate attacks clearly violate international humanitarian law (i.e. the laws of war).

The Palestinian attacks must also be seen as terrorist attacks under a related international convention: the International Convention for the Suppression of Terrorist Bombings. This convention makes it a crime to bomb public places (such as city streets) with the intent to kill civilians. This Convention relates to bombings carried out by persons that are non-nationals of the state of which the victims are nationals. Also under this Convention, the Palestinian attackers are considered international terrorists.

To expect or even suggest that a peaceful resolution to the Israeli-Palestinian conflict is possible might be idealistic and perhaps even unrealistic at this juncture. However, doesn’t the international organization in charge of monitoring compliance with human rights law have certain obligations to innocent civilians dying as a result of the conflict? What could the United Nations do on behalf of the civilians who are stuck in the crossfire of this seemingly never-ending conflict? Is the United Nations stuck by the politics of the Security Council composed by nations concerned with their own political interests? Is the UN losing credibility as an international organization when it allows human rights violations such as the ones occurring in Syria, Gaza, South Sudan, Central Republic of Africa, Nigeria, Ukraine, etc.?

 

Europe and the “Right to be Forgotten”

With its odd sounding name “The right to be Forgotten” has made its way in recent months into the discussion of privacy/data protection and the internet. This “right” is little more than a long held feeling that an individual should have the ability to remove information from the internet at some point in time based on such reasons as it being incorrect, being unfairly placed on the internet, or simply being having occurred long ago and no longer relevant.

The “Right to be forgotten” was enshrined in the in the 1995 European Data Protection Directive (Directive 95/46 EC). (Directives direct all member States to enact an enforceable framework of laws to give them effect, and form one of the principal bases of governance in the EU). Under Article 12 of the Directive private citizens in the EU were permitted to request removal of information from the Internet. Specifically, Article 12 on the “Right of access” states:

Member States shall guarantee every data subject the right to obtain from the controller:

(b) as appropriate the rectification, erasure or blocking of data the processing  of which does not comply with the provisions of this Directive, in particular because of the incomplete or inaccurate nature of the data;

(c) notification to third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out in compliance with (b), unless this proves impossible or involves a disproportionate effort.

A recent ruling Judgment of the Court (Grand Chamber) in C-131/12 Google Spain v AEPD and Mario Costeja Gonzalez (13 May 2014), has given new teeth to the right to be forgotten and sounded the alarm for search engines, Internet Service Providers and others.  The case began in 2010 when a Spanish citizen presented a complaint against a Spanish newspaper and Google with the Data Protection Agency of Spain. Mr. Costeja alleged that a notice of auction in connection with a bankruptcy notice that appeared in Google’s search results violated his right to privacy because the matter to which the notice related had been completely resolved for several years and was no longer relevant. He initially asked that the newspaper be required to either delete the information or change the pages at issue so that the personal data would cease to appear online; and also, that Google Spain or Google Incorporated be ordered to not make the information relating to him available through searches with his name.

The Spanish Audiencia Nacional (similar to a US District Court) decided to stay the proceedings and to refer the case to the Court of Justice of the European Union for opinion on the following broadly stated questions:

(a) Whether the Directive 95/46 EC applied to search engines such as Google;

(b) Whether Directive 95/46 EC applied to Google Spain, given that the company’s data processing server was in the United States;

(c) Whether an individual has the right to request that his or her personal data be removed from accessibility via a search engine under Article 12 (the ‘Right to be Forgotten’).

In answer to these questions, the Grand Chamber, which is comprised of 15 judges (including the president and vice-president) found that:

a) Even in cases where the actual server is located outside of the EU, the laws and Directives of the EU are applicable to search engine providers if they maintain a physical presence in any Member State and carry out business intended toward garnering revenue within the the EU;

b) Search engines should be considered “controllers” of personal data. That by search engines qualify by “…exploring the internet automatically, constantly and systematically in search of the information which is published there, the operator of a search engine ‘collects’ such data which it subsequently ‘retrieves’, ‘records’ and ‘organises’ within the framework of its indexing programmes, ‘stores’ on its servers and, as the case may be, ‘discloses’ and ‘makes available’ to its users in the form of lists of search results.” As such the right to be forgotten as enshrined in 95/46 EC also applies to them.

c) As to the last question the Court concluded that the Right to be Forgotten extends to “not only from the fact that such data are inaccurate but, in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes.” It went on to state that: “even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed.”

The Court does go on to that the right to be forgotten is not without limits and must be balanced against “the legitimate interest of internet users potentially interested in having access to that information…”  The Court goes on to explain that, “when appraising such requests made in order to oppose processing such as that at issue in the main proceedings, it should in particular be examined whether the data subject has a right that the information relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name.” Interestingly, the Court makes explicit that eth party requesting removal need not establish “that the inclusion of the information in question in the list of results causes prejudice to the data subject.”

With this ruling the EU has confirmed one of the basic rights which to date remained little more than an aspirational right.  The question is whether this ruling applies to specific cases affecting an individual’s right to privacy over information that is no longer relevant or inaccurate, or whether it serves as a harbinger of court intervention to establish such other Internet rights as the right to Opt-In, greater protection from Cookies, or the right to be obscure on the Internet?

By Ivan Mercado