Tag Archive | "Human Rights"

Migrants seen as Economic Detriment to Greece and Benefit to Germany

By the end of July 2015, more than 124,000 refugees and migrants had arrived in Greece; an astonishing 750% increase in the amount of refugees and migrants from the same time the previous year. The vast majority of these refugees are those feeing conflict and human rights violations in Syria, Afghanistan, and Iraq in wake of the humanitarian crisis.

Refugees arriving in Lesbos, Greece. Photo credit: Laxar Simeonov (click for source)

For these refugees, the Greek financial crisis has been both a blessing and a curse. For many, travel into the Greek islands is attractive because of the country’s reputation for leniency in immigration laws and lack of resources to adequately control its borders and the flow of immigrants. However, once they’re in, many face the bleak reality of the struggling Greek economy. Though some view Greece as simply the entry point into Western Europe with plans to move north to more prosperous countries such as Germany, many flee to Greece with very little possessions and money and can’t afford to travel any further. It’s at this point that the realities of the Greek economy and the scope of the refugee crisis come into view: Greece simply cannot support and process the major influx of refugees while at the same time trying to recover its dismal economic state. Frustrations in the wake of such considerations have reached a tipping point recently culminating in riots on the island of Lesbos over seemingly inefficient process for intake of refugees and inability of the government to provide basic necessities to those arriving on the islands.

Although Greece is struggling to assist refugees, the generous response from the Greek society, in a very difficult time, should be and appears to be acknowledged with action and support from the European Union. On September 22, the EU Interior Ministers voted in favor of a quota system to address the crisis and help to relocate asylum-seeks throughout Europe. Though the plan has been approved by the EU Interior Ministers, it still must be considered by the EU Presidents and Prime Ministers, and the EU remains divided on how best to address the refugee crisis, with some member states calling the quota system “unreasonable” and a “waste of time.” However, scholars on the other side have taken the position that the massive influx of refugees seeking employment and ready to build a new life presents a valuable opportunity for countries like Germany, with an aging workforce and declining population, and have gone as far as to forecast that a sharp increase in growth will result for those willing to accept new migrants and asylum-seekers stating, “an influx of 1 million people over the next three years would raise the country’s GDP by 0.6% by 2020.” Germany’s ability to integrate a substantial number of asylum-seeks seems to have been taken into consideration, with Germany being asked to take by far the highest number of immigrants under the proposed plan.

Demi Arenas is a 3L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal or International Law and Policy.

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Grading the United Nations at 70 years old

(Denver Post) By Ved Nanda

The euphoria that accompanied the creation of the United Nations in 1945 has long since



given way to frustration and disappointment. Established in the aftermath of the death and destruction of World War II to “save succeeding generations from the scourge of war,” it has succeeded in preventing another global war, but peace still remains illusory.

Armed conflicts in Syria, Iraq, Afghanistan, Libya, the Congo, Yemen, and other places attest to this grim reality. And the killing fields of Cambodia, the genocide in Rwanda, and the tragedy of Srebrenica show the international community’s failure to make good on its promise.

Benefiting from the experience of the failed League of Nations, the U.N. founders proclaimed in its charter the main purposes: to maintain international peace and security, to promote and protect human rights, and to effectively address pressing international economic and social issues such as development through international cooperation.

For a fair assessment of the U.N. on its 70th anniversary this fall, we need to look at its record in achieving these goals.

Under the U.N. framework, the Security Council, in which the veto power is wielded by five permanent members — China, France, Russia, the United Kingdom and the United States — is primarily responsible for peace and security. The founders envisioned that these five members would provide an umbrella of collective security for the world. That is why these became the only countries exclusively authorized to possess nuclear weapons.

But the Cold War quickly intervened. The U.S. and the Soviet Union — then the two superpowers — were embroiled in a prolonged ideological struggle, which led to an era of client states and proxy wars. The outcome was a paralyzed Security Council and stillbirth of the collective security system. This period lasted until the collapse of the Soviet Union.

At that time, there was renewed promise that the five permanent members (P-5) would work together to fulfill the expectations of the Security Council’s role on peace and security, and the first Gulf War showed a glimpse of that possibility. But the window again closed with Russia and the West at loggerheads on several geopolitical issues.

This tussle notwithstanding, the P-5 have found their interests aligned on countering terrorism, piracy, nuclear nonproliferation, on imposing collective sanctions on Iran, and now the Iran nuclear deal. They have also given their blessings to peacekeeping operations, and President Obama is to host a peacekeeping summit in New York in September. But more often, they disagree, such as on Syria.

Because the collective security apparatus did not work, the U.N. instituted peacekeeping as a band-age for trouble spots. From the early days of U.N. peacekeeping between India and Pakistan, these operations have expanded considerably, now in 16 countries with an enhanced mandate to protect civilians.

More than 100,000 personnel from more than 100 countries are engaged. The operation is costly — $8 billion-plus — and there are tremendous challenges. Critics often point to inefficiencies and abuses in the system, which badly needs clearly defined mandates, selection of peacekeepers based on experience and training, an effective oversight process, and well-defined exit strategies. The value of these operations, however, cannot be overstated.

The geopolitical circumstances have shifted the landscape. The 50 original charter signatories have grown to 193. No longer are peace and security issues confined to conflicts between and among states, as non-state actors such as the Islamic State, terrorists, and criminal elements challenge the traditional structure. And mass migration, climate change, environmental degradation, food insecurity, and violent extremism, among other forces, are major global security problems.

More than 50 million people are forcibly displaced today, and given the tragic incidents of hundreds of asylum-seekers drowning in the Mediterranean Sea and thousands on the move in Europe, the international community is undoubtedly failing them. Will the U.N. system, which is already showing its age, be able to deliver on these challenges?

On human rights, the U.N. indeed has undertaken impressive initiatives. Given the vivid demonstration of the Nazi Germany’s atrocities at home and aggression abroad, the founders realized that peace and security and human rights are inextricably intertwined. Accordingly, human rights found a place of honor on the U.N. agenda. The Universal Declaration of Human Rights, adopted in 1948, followed by binding international treaties on civil and political rights and economic, social, and cultural rights, culminated in an “international bill of rights.”

Since then, a number of international agreements have set universal standards for the promotion and protection of the rights of women, children, indigenous peoples, and disabled persons, for example. International agreements on the prohibition of atrocity crimes — genocide and torture, ethnic cleansing, and war crimes — and the creation of an International Criminal Court to hold egregious violators accountable are attempts to end all impunity. And credit for the independence of dozens of former colonial states goes to the U.N.’s decolonization process.

The U.N. World Conferences on Women — especially the 1995 Beijing Conference — set the goals of gender equality, active participation of women in decision-making, reproductive rights, and voluntary family planning. U.N. Women, a U.N. entity, now has a universal mandate to promote the women’s rights agenda.

Impressive international agreements are now in place on a wide range of other issues of human interaction, including the environment, the Earth’s ozone layer, the oceans, trade, outer space, terrorism, disarmament, aviation and shipping. The U.N. specialized agencies are addressing these issues. For example, the World Health Organization leads the global response to pandemics by creating awareness and mobilizing member states’ quick action on these threats.

The U.N. is attempting to shape a livable future on earth through a “sustainable development agenda,” which envisions linkage between economic viability, social development, and environmental aspects. It is an effort to bridge the initial North-South divide under which the developed states focused primarily on environmental protection, and developing countries on development needs. In 2005, the U.N. adopted the Millennium Development Goals, which focused on reducing poverty, hunger and child mortality, ensuring women’s empowerment, and providing clean water. Many of these goals, set to expire at the end of this year, have been largely met, and in September the U.N. will launch the Sustainable Development Goals, to last until 2030. These goals aim at ending poverty and hunger in all their forms everywhere, achieving gender equality, and ensuring access to clean water, sanitation, and affordable, reliable, and modern energy for all.

Indeed, the U.N. has had spectacular successes and monumental failures. It provides this interdependent world a platform where nations can enter into dialogue and negotiate to resolve their conflicts and address pressing challenges. Undoubtedly the organization suffers from a large bureaucracy, mismanagement, and inefficiency. Its governance structure has pointedly come under harsh criticism, a valid concern, indeed.

Currently the expansion of the Security Council is a contentious issue. Among the P-5 there is no representation from Africa or Latin America. The Asia-Pacific region, which comprises 55 percent of the world’s population and 44 percent of its annual income, has just one representative: China. This calls the Security Council’s legitimacy into question, and on Sept. 14 the General Assembly renewed the efforts for reform.

The veto power, which is responsible for the impasse and hence inaction at the Security Council to solve crises such as Syria, should be altered. But the P-5 defend it, and none would be willing to relinquish it. To illustrate, the Russian ambassador to the UK recently called the permanent members’ right to veto, a guarantee of checks and balances. And any alteration of the U.N. governance structure would require two-thirds of the membership of the General Assembly, 129 votes, not an easy task.

Secretary-General Ban Ki-moon’s term expires at the end of 2016. Jockeying for the job is in full swing. While East Europeans feel that it is their turn and the former president of Slovenia is a strong contender, there is powerful sentiment that the time is ripe for the first woman to take the helm.

There is truth in the cliché that if we did not have a United Nations we would have to invent one. However, while it is accurate that the U.N. can do only what its members will let it do, it must have the capacity to adapt to the changed geopolitical setting and a new economic and social landscape. Crucial questions are how to end red tape and bureaucracy; how to ensure effective monitoring and accountability mechanisms; and how to bring the governance structure in tune with modern-day realities.

Unless they are answered, the U.N.’s capability to effectively address the challenges and crises of the present and future is in question. The United States, which acknowledges the benefits of U.N. membership, must give its full support.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh Professor of Law and director of the Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law.


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Schengen Fails Under Weight of Migrant Influx as Sovereignty Trumps


The migrant crisis is forcing tensions between the free-movement created by the Schengen Agreement and notions of state sovereignty.  The crisis has brought into questions of European solidarity as countries force migrants from one country to the next.  In practice the EU’s Dublin Regulation, which requires that a migrant’s asylum claim be processed in the European country where he/she first arrives, has been de facto suspended.  Some have suggested, which this author agrees with, that the Dublin Regulation needs to be completely revamped to respond to the current crisis.

Just this weekend, the Hungarian government has accused Croatia of breaching international law by failing to register migrants.  At the same time, Hungary is currently building a razor wire fence in an attempt to stem the flow of migrants into the country.  Additionally, a number of migrants who reached Austria via Hungary have told the BBC they had not been registered in Hungary either, simply driven in buses across the country and told to walk over a railway line into Austria.

Meanwhile, in the last 24 hours, Austria has seen the arrival of tens of thousands of migrants.  Migrants were sent first to Hungary by Croatia, who stated it was unable to accommodate the 20,000 plus migrants who had arrived since Wednesday. While initially welcoming them, Croatia later state said it was unable to cope, sending them to Hungary.  Hungary then turned to Austria, while accusing Croatia of breaking rules by failing to register migrants.

EU Crisis - Boheme
Migrants queue as they wait to board a regional train at the main railway station in Munich, Germany. (Reuters)

Countries like Germany, which have welcomed refugees and have offered to take in records numbers of migrants are now finding that such offerings are untenable.  In his State of the Union speech on 9 September the EU Commission President, Jean-Claude Juncker, called free movement under Schengen “a unique symbol of European integration”.  However, such integration is now being tested.  While Mr. Juncker called for “better joint management of our external borders and more solidarity in coping” with the influx, the reality is that few countries have demonstrated solidarity in order to find a durable solution to the crisis.

While EU nations desperately guard their sovereignty and shift the burden from one country to the next, the conflicts in Syria, Iraq, Afghanistan, Libya and Eritrea continue raging, forcing migrants to choose between enduring extremely dangerous and dire situations at home, or leaving their homes and embarking on perilous journeys towards what they hope will be safety. Illustrating the dangers many migrants face in their flee towards safety is a recent warning from Croatia of the risk of landmines if migrants venture off the main roads in border areas, where Croat and Serb forces clashed in the early 1990s. Yet many migrants are still reported to be entering Croatia across those dangerous fields in an attempt to bypass border controls.

One migrant who made it safely to Austria told the Associated Press, “I feel like I’ve been born anew. It makes no difference whether I am delayed, whether I stay here two days. The important thing is that I’ve finally arrived and that I am now finally safe.”  However, the travel options for migrants remain dangerous, with the Greek coastguard reported that a five-year-old girl died when the boat taking her from Turkey to the Greek island of Lesbos sank, and at least 13 other migrants on board are missing.

What is clear is that the conflicts in countries such Syria, Iraq, and Afghanistan shows no signs of stopping, and as a result, migrants will continue to seek safe haven in Europe.  With attempts such as the EC’s recent proposal for mandatory quotas to distribute 160,000 migrants EU-wide being rejected, countries need to do much more to address this issue which will not disappear any time soon.  However, the problem is incredibly complex, as migration expert Demetrios Papademetriou, president of the Migration Policy Institute Europe has suggested.

Papdemtriou stated recently that to address the migrant crisis, Europe will have to invest in creating real opportunities for refugees so that they can stay in neighboring countries, make a livelihood, get an education, and access health services. He suggests further that Europe should work with countries that are a launching pad, by targeting three or four key countries on the pathway from countries experiencing large patterns of migrations, and do as much as it takes to get their cooperation — to stop traffickers, to create opportunities for people to stay, and create a safe pathway.  This of course requires the cooperation of European countries and governments, something that has been in short supply during the crisis.  This is not to oversimplify the fact that governments have genuine security concerns, and real concerns regarding resources both economic and otherwise, and this crisis is incredibly complicated.  There is no “easy” solution.  However, what this situation requires is a strategic response, which cannot be achieved without the cooperation of affected countries, including a possible revamp of the Dublin Regulation and an open dialogue on the functioning of the Schengen Agreement within the framework of the current crisis.

Emily Boehme is a 3L at University of Denver Sturm College of Law and Senior Managing Editor on the Denver Journal of International Law and Policy.

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When Law is not Enough: How to Eradicate Female Genital Mutilation


Girls in Egypt 2015 (photo by Christina Mourad – UNFPA)

The practice of female genital mutilation (“FGM”) has many psychological, emotional, and physical effects.  The international community recognizes the practice FGM as a human rights violation.  There has been a global effort to eradicate the practice by both firmly categorizing FGM as a human rights violation and by making the practice illegal in countries where it is practiced.  Despite these efforts, and despite the increasing awareness of the risks linked to FGM, millions of young girls are still affected today.  This is because condemnation by the international community and even successful efforts within countries to make FGM illegal have done very little to change the social and cultural realities surrounding the practice.  Until that happens, FGM will continue to effect women across the globe.

Currently, countries such as Somalia, where the rate of FGM is 98 percent, are considering passing legislation that will make FGM illegal.  Making the practice illegal is an important step, however, simply changing the law will not, on its own, eradicate FGM.  In Egypt, for example, although the practice has been illegal since 2008, the rate of FGM for married women is still at 92 percent.  Furthermore, despite the fact that a doctor was recently convicted of manslaughter for performing FGM (his patient died), many doctors are still willing to perform the procedure.  Even countries where FGM has not historically been woven into the fabric of society are struggling with eliminating the practice.  For instance, in the United States, where FGM has been illegal since 1996, “the number of women at risk for female genital mutilation has practically doubled in the last decade.”

The continued pervasiveness of FGM, even in countries where it is explicitly illegal, is due to the fact that it is deeply woven into the fabric of society in many cultures around the world.  Whether or not a girl goes through FGM is directly linked to her marriage prospects and to her acceptance into society.  So for a family to forge the procedure or for a girl to refuse the procedure can have lasting and devastating effects. One girl in Sierra Leone was pulled out of school for two years for bringing shame on her family for refusing.

Legal action and international condemnation usually ignore these important cultural issues.  The “knee-jerk” reaction in Western cultures is to completely demonize FGM and ignore sincerely held cultural beliefs.  However, it turns out that one culture judging and attacking another does absolutely nothing to change the minds and practices of the judged culture.  FGM is no exception.

The reality of the situation is that education and uniting the community are the keys to eradicating FGM.  This approach must take into account the traditions and ancient cultural roots of FGM so as to not alienate communities.  This is because the entire community needs to come together for this goal to be achieved.  Especially since it is the adults who are ensuring and, in some cases, forcing children to go through the process.  Without collective and coordinated action in the community, social pressures will continue to allow FGM to flourish.

Simply making something illegal without also changing cultural attitudes underling a practice will do little to eradicate the practice.  Neither will condemning the practice outright and without any attempt to understand the underlying reasoning for the practice to continue.  The increased international attention to the harms caused by FGM, and the attempts by some countries to eradicate the practice through passing legislation, are important.  However, for the sake of the millions of girls still at risk of the procedure, more needs to be done.  It is only by addressing the cultural issues realistically and sensitively that FGM can be reduced and hopefully eradicated globally.

Allison Derschang is a 3L at the University of Denver Sturm College Law and a Staff Editor on the Denver Journal of International Law and Policy

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Intervention: Altruistic Benevolence or International Tyranny?

John Donne famously declared, “[n]o man is an island.” Similarly, “no state is an island,” as states are inevitably impacted by the actions of others. But does this mean that any connection, however attenuated, justifies one state’s interference with another? Is this kind of interference ever justified? Is there ever an obligation on states to commit just this sort of interference?

(courtesy of K-State IMI data)

Historically, the line that divided benevolent intervention from tyrannous interference was the consideration of whether such interference was necessary to protect a state’s “vital interests.” While the standard of “vital interests” is itself an amorphous concept, the greater concern is whether it is an appropriate standard in the first place. Might not atrocity permit, and perhaps even require, those states with the ability to interfere to do so?

As early as 1933, the Montevideo Convention on the Rights and Duties of States illustrated the efforts of the international community to establish limits on the extent to which countries could interfere with one another. Article XI explicitly provides that “[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.” Similarly, Article II of the United Nations Charter, passed in 1945, states that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of [a] state.” The general trend at this time appeared to favor non-interference, considering the sovereignty of a state to be absolute.

The Universal Declaration of Human Rights (UDHR), adopted in 1948, suggests a divergence from this mode of thinking. In its prohibition of genocide and war crimes, the UDHR proclaims that it is the responsibility of nations to ensure the “universal and effective recognition and observance” of human rights. However, the implications of this agreement remain abstruse. Is it the responsibility of each state to guarantee these rights only within their own borders, or is it incumbent upon each state to ensure that all other states also adhere to the UDHR? By what guiding principle is a state to adjudicate this dilemma born out of ambiguity and vacillating standards?

The difficulty lies in the collision of sovereignty with the prevention of atrocity. Interference constitutes a breach of sovereignty and it seems that any subsequent agreement made due to such interference would fail to be legitimate. An additional concern therefore is that it would be no mark against the state which violates an agreement made under such duress. But perhaps such a violation of sovereignty is required in the face of large-scale violence. In this context, the question of how many lives a state’s sovereignty is worth remains a haunting question.

While the United States has established that amongst their citizens there is no legal duty to rescue, perhaps a different standard is called for in the international arena. Current international law appears to leave both options open: vigorously protect human rights within one’s own borders only, or unequivocally engage atrocities both foreign and domestic. The burden of this decision rests with the various states as they determine their own statuses in a multifarious world, as there does not appear to be a clear legal answer.

As states struggle to determine precisely what influence they wish to exert, perhaps a guiding principle can be discerned from the Declaration of Independence signed at the birth of the United States: “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government.” If the United States, or any other state, truly believes all people possess a duty to oppose a certain kind of cruelty, it would seem that the answer is clear: violations of human rights are intolerable. Yet the burden remains with each state individually to determine when and how to intervene, as the legal question of whether interference constitutes benevolence or tyranny remains an open one.

Cameron Hunter is a 3L law student and second year master’s student at the University of Denver and is the Survey Editor of the Denver Journal of International Law and Policy.

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Who is to Blame for the Venezuela – Colombia Border Crisis?

Columbian Crossing River
Many Colombians are leaving Venezuela by crossing the Tachira river. (courtesy of BBC)

In an effort to restore peace and order along the Colombian border, the President of Venezuela, Nicholas Maduro, has declared a state of emergency. Border crossings between Venezuela and Colombia have closed, martial law has been enacted in border regions, and Colombians living in border towns in Venezuela illegally were given 72-hours to pack up and leave their homes, many fleeing back across the river to Colombia. This decision comes after smugglers and border police engaged in gunfire last week, leaving three soldiers wounded.

The identity and nationality of these smugglers is still yet unknown, an investigation is underway. One other individual involved in the attack was arrested, he is a Venezuelan citizen. President Maduro has accused Colombian paramilitary individuals of having a link to Colombia’s former president, Alvaro Uribe.  However, Colombian President, Juan Manuel Santos has suggested that the smuggling problem is rooted in Venezuela, not Colombia. For many years, Venezuelan citizens have used the border to smuggle gasoline and other Venezuelan goods into Colombia in order to sell them at higher prices to Colombian citizens. This smuggling practice is facilitated by Venezuela’s government subsidies which allow Venezuelan citizens to use these subsidies to purchase food, cosmetics, and gasoline that they later re-sell in Colombia, which has resulted in these items becoming scarce inside Venezuela. However, President Maduro attributes the scarcity of these items to mismanagement and not to smuggling. The black market economy originating in Venezuela has been the source of income for Venezuelan families living along the border of these two countries for some time.

Marked "D"
Colombian President Juan Manuel Santos said the marking of houses reminded him of “bitter episodes” in history. (courtesy of BBC)

The state of exception instituted by President Maduro has been the subject of international criticism. Venezuelan army soldiers have marked the cinder block homes of these evicted families with a red letter “D” indicating demolition.  The declaration of a state of emergency allows Venezuelan soldiers to search businesses without a warrant. News outlets around the world have condemned these actions. The families with only a 72-hour eviction notice, have been forced to walk across knee-high river waters with their belongings, leaving the oil-rich country where they established a life behind. There have been more than 1000 Colombian citizens that have been deported since the law was implemented. Although President Maduro blames these citizens for Venezuela’s smuggling and violence problems, these families have fled poverty, famine, and violence and moved to Venezuela hoping to benefit from the country’s natural resources labor. More than 800 Colombians live in this border region. President Santos has already pledged to providing government subsidies for these families and helping these them find a home in Colombia.

The effects of this border closing have already been seen in both countries. In Colombia there is a scarce supply of gasoline, leaving many motorists competing for fuel to power their engines. In Venezuela, the trade halt has left many poor families that relied on this trade without means to support their families. Although President Maduro is satisfied with the halting of the smuggling practice, this border closing has done anything but address the root of the smuggling problem, which originates in Venezuela.

Sandra M. Ortega is a 2L at University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

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Identifying Torture: A conspicuous ambiguity

In any endeavor requiring the employment of language, ambiguity is an inescapable

That is not to say however, that all attempts at specificity ought to be abandoned. The need for special care in language increases with the gravity of the subject of consideration. Discourse concerning topics such as torture requires the utmost care, and is deserving of maximal precision. It is for this reason that the language of the Convention Against Torture (“CAT”) is so unsatisfactory. The mere creation of the convention itself is inadequate without language sufficient to bind its signatories in the way intended.

There are two terms that are particularly problematic in Article I of CAT. The relevant sections state that torture is defined as “any act by which severe pain or suffering…is intentionally inflicted on a person.” Both “severe” and “intentionally” represent troublesome gaps in the convention’s injunction. This lack of fastidiousness has led to problematic rulings by the U.S. Justice Department and the U.S. courts, which have taken advantage of the open-ended nature of the terms contained within the convention. One example of this abuse of ambiguity is a memorandum handed down by the U.S. Justice Department in 2002, which provided an incredibly narrow interpretation of the term “severe.” In the memorandum, severe was interpreted as meaning “intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in loss of significant body function will likely result.” While this memorandum was ultimately repudiated, it is a somber example of the vast discretion that can be applied to the language of CAT.

The second example is the 2008 case Villegas v. Mukasey, which represents a troubling interpretation of the term “intentionally.” One of the explicitly enumerated elements of torture is the underlying motivation. This motivation can consist of “obtaining…information or a confession, punishing…or intimidating or coercing.” In this case, the applicant, a citizen of Mexico who had been lawfully admitted to the United States, was found guilty of second degree robbery. The applicant, suffering from bipolar disorder, argued that removal to Mexico would result in his being confined to a Mexican mental institution, “where conditions are deplorable.” In Article III, CAT specifically prohibits extradition to countries where torture is likely. On this basis, the applicant argued that removing him to Mexico would be sending him to a torture chamber masquerading as a mental institution. However, the United States Court of Appeals for the Ninth Circuit affirmed the earlier rulings, and found against the applicant. The court, operating under the Foreign Affairs Reform and Restructuring Act of 1998, and its construal of the term intentionally, held that intentionally refers to “specific intent,” or an intent to bring about the consequences of the action, not merely to “general intent,” or an intent to bring about the action itself. The court held that the awful conditions prevalent in the Mexican medical institutions were not a product of specific intent, and thus the applicant was removed to Mexico, to face the horrors of Mexican institutionalization, as punishment for his crime.

It is not necessarily the case that there are readily available terms simply waiting to replace the existing language of CAT. However, taking the time to unpack what is meant by this vague terminology is what is required for CAT to be effective in its mission. It has been said that those things which “[violate] the integrity of the human person, such as mutilation, [and] physical and mental torture…are a disgrace, and so long as they infect human civilization they contaminate those who inflict them more than those who suffer [the] injustice.” Of the many quandaries that plague modern society, the question of torture is of pivotal importance. It is therefore deserving of exceptional care in the declarations made which pertain to its tolerability.

Cameron Hunter is a 2L law student and first year master’s student at the University of Denver and is the incoming Survey Editor for the Denver Journal of International Law and Policy

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Mistaken as Terrorists: How innocent Syrian refugees are prevented from resettling in the US

The Syrian refugee crisis is one of the most horrific this generation has ever seen.

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

Syrian refugees living in a camp Credits: © Nikolay Doychinov/AFP/Getty Images

The United States, which has a long history of welcoming refugees into its borders and giving protection to those fleeing from persecution, has yet to put a significant resettlement initiative for Syrian refugees into motion. The United States has resettled 546 Syrian refugees since the crisis began.  UNHCR, on the other hand, hopes to resettle 50,000 Syrian refugees in 2015, and another 50,000 Syrian refugees in 2016 in permanent resettlement placements around the world.  The lack of action on the part of the United States is due, in part, to its strict immigration laws in regards to terrorism.  The Terrorism Related Inadmissibility Grounds (“TRIG”) sweep broadly over many individuals who are not dangerous in any way.  The TRIG statutory language, codified in the Immigration and Nationality Act (“INA”) prevents many innocent Syrians from finding a stable and safe living situation.

There are two areas of the INA that stand as a significant obstacle for many Syrian refugees wanting to resettle in the United States. First is the definition of “terrorist activity,” defined in INA §212(a)(3)(B)(iii) as “any activity that is unlawful under the laws of the place where it is committed.” Because the law defines any military action against a regime as “terrorist activity,” individuals who were once seen as friends of the Untied States are now labeled as terrorists. For Syrians, opposition fighters are labeled as terrorists and are excluded from entering the United States, even though the United States government supports them. In contrast, those who were in Assad’s army, which the United States opposes for its violations of international law, would still be admissible, because the statute only applies to non-state actors.

Second, many Syrians may be found inadmissible due to their insignificant material support to a Tier I or Tier II terrorist organization (designated terrorist organizations by the Secretary of State and Attorney General, respectively). In INA §212(a)(3)(B)(iv)(VI), the giving of material support to a terrorist organization labeled as “terrorist activity.”  DHS, in past oral arguments before the BIA, has stated that they would consider even the most minimal support given to a terrorist organization, like a glass of water or five cents, as material support.  Syrians deemed inadmissible due to their material support of a terrorist organization include a family that sheltered an opposition fighter in their home when their town was being bombed, a young boy who joined the opposition fighters for a short time when his father was killed, eventually leaving the war to join his mother and siblings, and even the man who sold falafel sandwiches to opposition fighters in a war-zone.

In order for the United States to continue its longstanding tradition of welcoming people fleeing from persecution, the TRIG laws need to be changed.  DHS needs to use its discretionary authority and expand the available TRIG waivers. Civilians living in Syria were subject to innocent contact with Tier I and Tier II terrorist organizations on a regular basis; this is the nature of living in a conflict zone.  The armed group that took control over the territory they lived in became their customers in their stores—innocent, insignificant material support is unavoidable.  Additionally, exceptions should be given on a case-by-case basis to former combatants who pass a security background check and are not barred for any other statutory reason, including those who were children at the time they were combatants, or to individuals who did not participate in targeting civilians.

Kitty Robinson is a 2L at the University of Denver and is the incoming Candidacy Editor for the Denver Journal of International Law and Policy  

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Critical Analysis: R2P – Whose responsibility is it?

Nigerian Refugees in Minawao, Cameroon. Credit: DW. http://www.dw.de/stranded-near-the-nigerian-border-a-visit-to-the-minawao-refugee-camp/a-18275323

Nigerian Refugees in Minawao, Cameroon. Credit: DW. http://www.dw.de/stranded-near-the-nigerian-border-a-visit-to-the-minawao-refugee-camp/a-18275323

On April 14, 2014 the hashtag #BringBackOurGirls began trending on Twitter as the abduction of 276 Nigerian schoolgirls in Chibok flooded news outlets around the world.  The Islamist group Boko Haram claimed responsibility for the kidnapping, and, with the exception of a few victims who have since escaped, the majority of the girls whereabouts are still unknown. According to UNICEF, in the year since the Chibok abductions, 1.2 million people in northeast Nigeria have been displaced due to Boko Haram-insurgency. Schools have been a target for Boko Haram since its militant operations began in 2009. In the past three years over 300 schools have been destroyed in the northern region of Nigeria, depriving 10,000 children of an education.

Perhaps the most troubling trends since Boko Haram’s reign of terror began have been the increasing number of the displaced being subject to human trafficking and Nigeria’s lack of effectiveness in preventing it from spiraling out of control. According to the Global Slavery Index an estimated 800,000 people are enslaved in Nigeria. However, by the Nigerian government’s own admission, 8 million children are currently subject to human trafficking. Many of those trafficked children are forced into labor, marriage, and prostitution. The displacement camps and their surrounding communities have had their access to humanitarian aid cut off by the violence, rendering them ineffective in supporting the overwhelming amount of refugees flooding their streets. The overcrowding, lack of food, and fear for safety has forced many young girls into prostitution, and young boys into joining the recruitment of Boko Haram in the armed conflict.

These atrocities have not gone unnoticed by the international community.

Hundreds of Nigerian Refugee Tents in Minawao, Cameroon. Credit: DW.

Hundreds of Nigerian Refugee Tents in Minawao, Cameroon. Credit: DW.

#BringBackOurGirls was tweeted 3.3 million times in the month following the kidnappings in Chibok, and UNICEF has responded by supplying 60,000 children with psychosocial support and by raising an estimated $3.84 million to further its efforts during 2015. Yetdespite worldwide awareness of the crisis in Nigeria the international community has done little. Similar to its inability to address the plight of the Palestinian refugees, international humanitarian law has yet again proven to be inefficient in address humanitarian crises in an urgent and effective manner. While intergovernmental organizations and state commenters have been in favor of implementing a Responsibility to Protect in these situations, they have yet to do so.

Is the lack of any real progress towards the implementation of Responsibility to Protect an indication that it may not be the answer to grave and immediate humanitarian atrocities? In late 2011, multiple states took a stand against a United Nations Security Council draft resolution draft on Syria’s violent response to the protests in Damascus against Syrian President Bashar Al-Assad. China and Russia vetoed the draft fearing that it would be construed by western states as legitimizing “unilateral sanctions and [an attempt] to forcefully overthrow regimes.” Brazil, India, South Africa, and Lebanon abstained from the vote, with South Africa expressly stating its concern that the resolution may be abused to justify implementation of “punitive measures on Syria.” Brazil, in its comments, stated its belief that “[a] meaningful, inclusive national dialogue leading to reform” was the only answer to the Syrian crisis.

Muhammadu Buhari, Nigeria’s President-elect, stated in an op-ed piece for the New York Times: “The answer to defeating Boko Haram begins and ends with Nigeria.” This is a unique answer for many states facing seemingly insurmountable issues with terror like that of Nigeria. However, it may very well be the key to effectively staving immediate humanitarian crises in the future. Buhari’s plans focus on Boko Haram’s target – education. Instead of waiting for the international community to accept its Responsibility to Protect Nigerian citizens from the atrocities committed by Boko Haram, Buhari seems prepared to set the onus on his own government, stating:

“My government will first act to defeat [Boko Haram] militarily and then ensure that we provide the very education it despises to help our people help themselves. Boko Haram will soon learn that, as Nelson Mandela said, ‘Education is the most powerful weapon which you can use to change the world.’”

It remains to be seen how effective Buhari’s government will be at shouldering the Responsibility to Protect in Nigeria. However, its success could go a long way in solving the conundrum of the international community: “whose responsibility is it?” In the meantime, the international community will continue to grapple with forming a framework in which the doctrine of the Responsibility to Protect can adequately address future humanitarian concerns.

Philip Nickerson is a 2L at the University of Denver Sturm College of Law and is Managing and Production Editor for the Denver Journal of International Law and Policy.

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Buddhist monks in Meiktila, Myanmar

Myanmar religion law restricts conversion and criminalizes adultery

International organizations are outraged over proposed legislation being negotiated in the Myanmar Parliament which would require individuals to obtain government approval before converting to, or adopting, a new religion. Myanmar (Burma) is a primarily Theravada Buddhist nation of 54 million people with a generally poor, but improving, human rights record. President Obama has visited Myanmar twice in recent years, placing an international spotlight on the country as it begins its path to reform. Although Myanmar President Thien Sein has introduced increased governmental transparency, the inaugural elections under the new democratic system upcoming in October are already marred in controversy. Myanmar parliamentarian and famed pro-democracy advocate Daw Aung Sun Suu Kyi claimed in November that domestic reforms had stalled.

Burmese Parliament

The Burmese Parliament in Naypyidaw with Daw Aung Sun Suu Kyi center. Photo: Reuters, irrawaddy.org

Human Rights Watch reports that the proposed legislation would also prohibit Buddhist women from joining an inter-faith marriage, criminalize extra-marital affairs, and penalize women who have multiple children within a 3-year period. Amnesty International (AI) insists that Parliament reject or revise the laws, which they claim would “risk fueling further violence against religious minorities,” and contribute to the already widespread discrimination against women. The proposed legislation also prescribes discriminatory obligations on non-Buddhist citizens, particularly effecting Muslim minority populations.

Concerns with the proposed legislation focus on four draft bills, which are opposed by AI and the International Commission of Jurists (ICJ) on the grounds that they violate international law and have dire human rights implications.

  • The Religious Conversion Bill requires anyone who wants to convert to a different faith to apply through a state-governed agency. It establishes “registration boards” who “approve” conversions. It is a clear violation of the ICCPR.
  • The Buddhist Women’s Special Marriage Bill exclusively regulates marriage between Buddhist women and men from other religions. It discriminates against women and non-Buddhist men. It is a violation of CEDAW.
  • The Population Control Healthcare Bill establishes a 36 month “birth-spacing” interval between allowed child births. It does not have a clear enforcement mechanism and could lead to forced reproductive control.
  • The Monogamy Bill is aimed at consolidating existing marriage and family laws, but most notable criminalizes extra-marital relations.
Undocumented Muslim immigrants gather at the Immigration Detention Center during Ramadan

Undocumented Rohingya Muslim immigrants gather at the Immigration Detention Center during the Muslim holy fasting month of Ramadan in Kanchanaburi province, Thailand on July 10, 2013. Photo & Caption Credit: Reuters, HRW.org

Ethnic and religious minorities in Myanmar have been subjected to ongoing and systematic discrimination for years. Recent reports from Rakhine state show that discrimination against the ethnically Muslim Rohingya population is pervasive and is only likely to increase if public sentiment generated by the proposed laws encourages the discrimination. Non-Buddhist women in Myanmar are subject to widespread discrimination and the law would increase the potential for legally sanctioned abuse. AI’s Asia-Pacific Director, Richard Bennett, is particularly concerned that the language of the laws plays into the “harmful stereotypes about women and minorities, in particular Muslims, which are often propagated by extremist national groups.”

Racial and religious tensions in the country are rising; heightened by the election and the November 18th arrest of a Burmese ISIS member following an accidental blast in bordering Burdwan, India.

Buddhist monks in Meiktila, Myanmar

Buddhist monks in Meiktila, Myanmar, where violence between Muslims and Buddhists left 43 dead in March 2013. Photo Credit: CNN

Some Buddhists in Myanmar feel the laws are necessary to prevent further violence. Myanmar Parliamentary Speaker Shwe Mann urged Parliament to pass additional legislation establishing and protecting a national religion. Political activist Monk Ashin Parmouhka told a Democratic Voice of Burma reporter “If you want to see peace and an end to religious and racial conflict in Burma, [the religion legislation] must be adopted. If you want more conflicts and unrest in the country, then don’t adopt the laws.”

While Myanmar is not party to the International Covenant on Cultural and Political Rights, it is a party to the UN Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC). In a joint statement, AI and the ICJ claim the laws are in violation of the country’s existing international treaty obligations. They fear that these draft laws are discriminatory and will result in human rights violations, including the right to freedom of thought, conscience and religion, the right to privacy, children’s rights and the right to freedom of expression. The legislation is currently tabled in Parliament, no date has been set for a vote.

Jeremy Goldstein is a 2L law student at University of Denver Sturm College of Law and a Staff Editor for the Denver Journal of International Law and Policy.

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