International Human Rights Law Update
Fall 1996
Katherine Hall Martinez, Editor
I. U.S. Court Cases:

(a) Alvarez-Machain v. United States, 96 F.3d 1246 (9th Cir. 1996). In 1990, the U.S. Drug Enforcement Agency orchestrated the torture and abduction of Alvarez-Machain, a Mexican doctor, and brought him to the United States to stand trial for the murder of a DEA agent. In 1992, the Supreme Court ruled that the abduction did not invalidate his trial (United States v. Alvarez-Machain, 504 U.S. 655). Alvarez-Machain was tried, but acquitted. Thereupon he instituted the present civil action against the United States and its agents under the Civil Rights Acts for violations of his constitutional rights to due process, adding claims in tort at common law and under the Torture Victim Protection Act. The District Court dismissed his constitutional claims on the ground that the U.S. Constitution did not protect a Mexican national in Mexico; it ruled that the TVPA did not apply because the events had occurred prior to its enactment. The Court of Appeals upheld the lower court's ruling on the constitutional claim but overruled its dismissal of the claims under the TVPA. The Court held that the Act may be applied to events prior to its enactment since it created no new duties or liabilities, but only made available an additional, federal forum.

(b) Chen v. Immigration and Naturalization Service, 95 F.3d 801 (9th Cir. 1996). The Board of Immigration Appeals ("BIA") in a final order denied the application of Chen, a Chinese citizen, for political asylum. Subsequently the District Court denied his petition for a writ of habeas corpus. Chen then appealed to the Court of Appeals for the Ninth Circuit, arguing that the BIA's decision in Matter of Chang, Int. Dec. 3107 (1989), holding that China's family planning policies do not constitute a ground for political asylum was not dispositive, having been overruled by subsequent administrative action and by an Executive Order. The Court of Appeals, following two other circuit courts, affirmed the denial of Chen's petition. The court declined to overrule Chang, finding the BIA decision to be entitled to deference. The court also declined to find a violation of Chen's human right to procreate as protected by the U.N. Universal Declaration of Human Rights and other human rights instruments, because violation of that right is not one of the grounds for asylum under the Immigration and Naturalization Act (the "INA"). [But, see Section II(a) below, describing recent legislation codifying the principle that resistance to coercive population control methods may serve as a basis for asylum.]

(c) Siderman de Blake v. Argentina, settled in Central District Court for D. Calif., Sept. 13, 1996. Siderman, a wealthy Jewish businessman, charged that he was abducted by the military on the night of its coup d'etat in 1976 and savagely subjected to torture, deprivation of food and water, anti-Semitic insults and repeated threats for seven days. He and his family fled to the U.S. and his property was expropriated by the military. In 1982, the Siderman family filed a complaint in a U.S. district court, against Argentina, based on the torture and harassment of Siderman and the illegal expropriation of the family's property. The Court of Appeals for the Ninth Circuit held, inter alia, that Argentina impliedly waived its immunity under the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 1605(a)(1), by implicating U.S. courts in its persecution when it attempted to file suit against Siderman in Los Angeles Superior Court in an effort to seize more of his property. See Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 720-22 (9th Cir. 1992). Jose Siderman reached a confidential settlement with the Argentine government, marking the first time a lawsuit in the U.S. has led to a foreign government (as distinguished from a foreign official) being held accountable for damages resulting from human rights abuses that occurred abroad. Although the terms of the settlement remain confidential and the Argentine government has never commented upon the wrongdoing, published accounts have estimated the damages paid at $6 million.

(d) Caballero v. Caplinger, 914 F. Supp. 1374 (E.D. La. 1996). Caballero, who had illegally entered the U.S,. had been convicted of aggravated felony, and had completed his sentence, was now being held in indefinite detention pending deportation. The District Court held that the immigration statute (8 U.S.C. § 1252(1) (2)(A)) which permitted the indefinite detention, pending deportation, denied Caballero both substantive and procedural due process. Also, the Eighth Amendment protection against excessive bail entitled him to a meaningful bail determination hearing. In its analysis of the due process issue, the court noted that its ruling is reinforced by and is consistent with principles of "evolving international human rights norms" that "condemn the `arbitrary' detention of persons [and] call for speedy and specific review of the legality of the detention or else the release of the individual." In support of its assertion, the court cited the Universal Declaration of Human Rights, the American Convention of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms. Id. at 1379.

II. Refugee Issues:

(a) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"),
Pub. L. 104-208, 110 Stat. 3009 (1996). The IIRIRA includes provisions dealing with summary exclusion and asylum that will affect individuals entering the U.S. with claims to asylum. Persons who enter the U.S. without proper documents will be excluded without a hearing, or review, unless they indicate an intention to seek asylum or declare a "fear of persecution." An asylum officer at the port of entry will determine whether a "credible fear of persecution" is present and, if so, the individual will be detained, without possibility of parole, for further consideration of the asylum application. Failure to establish a "credible fear of persecution" will result in deportation without further review, unless the person specifically requests such review by an immigration judge. The review must take place within seven days from the determination by the asylum officer, during which time the alien is to be detained. In addition, with certain narrow exceptions, asylum seekers already present in the U.S. must demonstrate by "clear and convincing evidence" that they filed for asylum within one year of their arrival in the U.S. Some human rights groups maintain that the asylum-related provisions of IIRIRA are inconsistent with Article 14(1) of the Universal Declaration of Human Rights on the right to seek asylum, and violate U.S. obligations under Articles 31 and 33(1) of the Convention Relating to the Status of Refugees, limiting what states may do to refugees illegally in their territory and the prohibition on the expulsion or return of refugees, as well as Article 2(1) of the International Covenant on Civil and Political Rights prohibiting discrimination on the basis of national origin.

The IIRIRA also amended the definition of "refugee" in Section (a)(42) of the INA to include individuals who resist coercive population control, deeming them to be persecuted or to possess a well-founded fear of persecution on account of political opinion. See In re Chen, above. No more than 1,000 refugees or asylees per year may be admitted under this provision.

(b) Recent Decisions of the Board of Immigration Appeals ("BIA")

(i) In re H--, File A73 149 072, BIA Interim Dec. 3276 (May 30, 1996). Overruling an immigration judge, the BIA held en banc that membership in an ethnic clan can constitute
membership in a "particular social group" within the meaning of section 208(a) of the INA, 8 U.S.C. Sec. 1158(a) (1994). The BIA found that clan membership is a highly recognizable, immutable characteristic and that the applicant is a member of a distinct Somali clan and is therefore a member of a "particular social group" within the meaning of the INA. Harm inflicted during civil strife may constitute persecution within the meaning of section 208(a) whether or not a national government exists. The case was remanded to the immigration judge for determination whether a grant of asylum is warranted or withholding of deportation is required.

(ii) In re S--- P---, File No. A 971 071, BIA Interim Decision 3287, 1996 BIA LEXIS 25 (June 18, 1996). In an en banc decision, the BIA granted asylum where the applicant was detained and abused by the Sri Lankan government both to obtain information about the guerrilla movement and because of an assumption that his views were antithetical to those of the government.

III. United Nations:
(a) International Criminal Tribunal for the Former Yugoslavia (the "Tribunal").

Sentencing Judgment in Erdemovic Case, No. IT-96-22-T (November 29, 1996). The Tribunal sentenced Drazen Erdemovic, a 25-year-old Croat who confessed to participating in a collective massacre in July 1995 following the fall of Srebrenica, to ten years imprisonment for crimes against humanity. The court described crimes against humanity as "serious acts of violence that harm human beings by striking what is most essential to them: their life, identity, physical welfare, health and or dignity. ... [and] are inhuman acts that by their extent and gravity go beyond the limits tolerable to the international community." he three-judge Trial Chamber concluded that Erdemovic's guilty plea, entered on May 31, 1996, was valid because it was made "voluntarily and in full cognisance of the nature of the charge and its consequences." In determining Erdemovic's sentence, the judges considered his young age at the time of the crime (23); his low military rank; his repeatedly expressed remorse; and his "full and unconditional" cooperation with prosecutors which assisted officials in locating the site of mass graves near Srebrenica and in establishing evidence against General Mladic, the Bosnian Serb military commander. Erdemovic will not be eligible for parole, and the country where he serves his sentence must execute the sentence on behalf of the Tribunal pursuant to international criminal law, not domestic law, and thus such country may not in any way alter the nature of the penalty. On December 23, 1996, Erdemovic's defense attorney filed notice of an appeal of the sentence in order to have the judgment "seriously reviewed and evaluated in detail once again" in light of the court's allegedly "erroneous and incomplete establishment of the facts" and "erroneous application of law," particularly in light of mitigating circumstances. Counsel also urged complete review given the judgment's precedential value in international criminal law.

(b) International Court of Justice,* Bosnia-Herzegovina v. Yugoslavia, Judgment on Preliminary Objections, July 11, 1996. Bosnia filed an Application before the Court alleging that Yugoslavia had violated the 1948 Genocide Convention. Yugoslavia claimed, among other arguments, that the Application was not admissible because there was no international dispute and that the Court had no jurisdiction. The Court found that a legal dispute existed between the parties and that regarding allegations of breaches of the Genocide Convention, the Court had jurisdiction "ratione materiae" (jurisdiction over the subject matter). The Application was ruled admissible by a clear majority and the case will now be heard on the merits.

(c) Human Rights Committee Decisions pursuant to jurisdiction under the Optional Protocol of the International Covenant on Civil and Political Rights ("ICCPR").

(i) Lubuto v. Zambia, Communication No. 390/1990, Views of the U.N. Human Rights Committee (October 31, 1995). The applicant was sentenced to death pursuant to a statute imposing that penalty where a firearm was used in a robbery. In this case a gun was fired but caused no injury. The Committee concluded that mandatory imposition of the death penalty violated Art. 6(2) of the ICCPR (death penalty may be imposed only for the most serious crimes) where the trial court was not permitted to consider that the use of a firearm had not resulted in death or injury. In doing so the Committee clarified the meaning of "serious" crime in Article 6 by ruling out the death penalty where no actual harm is caused. The Committee also concluded that notwithstanding Zambia's difficult economic circumstances, the eight year period between the petitioner's arrest and the final decision violated Article 14 (3)(c) (right to trial without undue delay). The Committee held that the appropriate and effective remedy would be a commutation of the sentence.

(ii) Bautista de Arellana v. Colombia, Communication No. 563/1993, Views of the U.N. Human Rights Committee (October 27, 1995). In 1987, a political activist was abducted and killed by armed men dressed as civilians. Following several years of inquiries by her family to police and military officers, a soldier testified that the highest commanding officer had consented to or ordered her abduction. Her family sought disciplinary proceedings against those responsible and eventually filed an administrative complaint, but were repeatedly denied information as to the status of the case. When the Human Rights Committee found the complaint admissible because of the unreasonable delay in instituting proceedings, Colombia informed the Committee that in fact disciplinary proceedings were instituted in March 1994 and a formal criminal investigation was launched in March 1995. Colombia also indicated that its national delegate for human rights had requested that the soldiers found responsible be dismissed from the army and that similar results were reached by the administrative tribunal which awarded compensation to the family. The Committee found that the disciplinary and administrative remedies were not "adequate and effective" as required by Article 2(3) of the ICCPR for serious violations of human rights such as occurred here, namely disappearance and death (Article 6(1)), torture (Article 7), and illegal detention and abduction (Article 9(1)). The Committee stated that the ICCPR does not establish an individual's right to require that a state prosecute a particular individual. However, the Committee's communication suggests that anything short of prosecution in the case of serious human rights violations where the perpetrators are known amounts to an inadequate discharge of the state's duty to safeguard its citizens rights. The Committee held that the petitioner had adequately exhausted domestic remedies and that the family should be provided appropriate remedies, including damages, protection from harassment and criminal prosecution of those responsible.

(d) Status of Proposed International Criminal Court ("ICC").

Work towards the establishment of an ICC continues. See International Human Rights Law Update, Spring 1995. The U.N. Preparatory Committee on the Establishment of an ICC ("PrepCom") met in March-April 1996 and again in August 1996. On December 17, 1996, the General Assembly, by consensus, adopted a resolution that renewed the PrepCom's mandate, approved its proposed dates for meetings in 1997 and 1998, and agreed to hold a diplomatic conference in 1998 to consider the PrepCom final draft statute. See the following U.N. documents: Report of the Sixth Committee (A/51/627); Letter from the Chairman of the Committee on Conferences (A/51/721); and the Report of the Fifth Committee (A/51/733). In the meetings of the PrepCom all the participating states (including the U.S.) supported the proposal in the Draft Statute that the ICC's jurisdiction include genocide, crimes against humanity and serious violations of the laws and customs applicable in armed conflict. Two other categories of crimes, aggression (the threat or use of force contrary to the U.N. Charter) and other crimes, such as unlawful seizure of aircraft, apartheid, drug trafficking, hostage taking, piracy and torture, have not yet gained general support.

IV. African Human Rights System:
(a) Achutan (on behalf of Banda) v. Malawi and Amnesty International ("AI") (on behalf of Chirwa) v. Malawi, Comm. Nos. 64, 68 and 78/92, Decision of The African Commission on Human and People's Rights (the "Commission"), pursuant to the African Convention on Human and People's Rights (the "Charter"), 18th Ordinary Session (October 2-11, 1995). Achutan was imprisoned for over 12 years without being charged or tried. Mr. and Mrs. Chirwa were sentenced to life imprisonment after a trial marked by irregularities. They were held in near solitary confinement, shackled for long periods, without adequate food or medical care, and prevented from seeing each other. In the interim, multiparty elections resulted in a new government but the Commission held that the acts described constituted violations of various articles of the Charter and that the change of government did not affect the responsibility for the previous regime's abuses.

(b) Constitutional Rights Project (in respect of Lakwot and 6 Others v. Nigeria), Communication No. 87/93, Decision of the Commission, 18th Ordinary Session (October 2-11, 1995). The petitioner and six others were sentenced to death by a special tribunal composed of police, members of the armed forces and judges and from which no judicial appeal or review was possible. The accused and their lawyers were so harassed and intimidated that the lawyers withdrew, leaving the former unrepresented at trial. Despite the fact that the Charter does not expressly require that a state provide an appeal for criminal conviction, the Commission implied such a right from the fair hearing guarantee (Article 7) where severe penalties affecting life and liberty are at issue. The Commission ruled that continuation of the trial without counsel violated the complainants' right of defense, that the composition of the tribunal created an appearance of lack of impartiality, and that the complainants should be freed.

V. Foreign Court Cases:
(a) Malundika v. The People, Supreme Court of Zambia, Judgment No. 25 of 1995; Appeal No. 95 of 1995 (Oct. 1, 1996); 1 Commonwealth Hum. Rts. L. Dig. 15 (1996). The Court granted an appeal to review provisions of the Public Orders Act which required persons wishing to hold a peaceful assembly to obtain a permit or face criminal penalties. The Court held that the requirement of prior permission was a hindrance to freedom of assembly and freedom of expression, since permission could be refused on improper, arbitrary or unknown grounds; that adequate guidelines on the exercise of the authorities' discretion were lacking; that the provision was set out in negative terms, implying that a permit was to be refused unless the authority could satisfy itself to the contrary; and that there was no procedure to appeal a refusal. The Court cited several foreign courts, including the U.S. Supreme Court in Whitney v. California, 274 U.S. 357, 375 (1927), in holding that courts had long recognized the importance of freedom of speech and assembly to a democratic society and that those rights could not be conditioned in this manner.

(b) Minister for Immigration and Ethnic Affairs v. Teoh, High Court of Australia, 183 C.L.R. 273; 128 A.L.R. 353 (1995); 1 Commonwealth Hum. Rts. L. Dig. 67 (1996). The Commonwealth of Australia appealed a stay of deportation of the respondent, a Malaysian citizen married to an Australian citizen; they had three children. The respondent had applied for permanent resident status, but was rejected on account of his conviction for offenses relating to the importation and possession of heroin while his application was pending. His application for reconsideration on compassionate grounds was rejected below, but on appeal the stay was ordered pending the Minister's reconsideration in the light of Australia's ratification of the Convention on the Rights of the Child ("CRC"). That convention created a legitimate expectation that decisions would be made in accordance with the CRC's principles. Article 3.1 of the CRC provides that "the best interests of the child shall be a primary consideration," although not necessarily the primary consideration. However, the Court noted that in the present case there was no indication that the best interests of the children had been treated as even a primary consideration. The High Court dismissed the government's appeal, holding that although the CRC had not been incorporated into Australian law, because Australia was a party and because the CRC deals with fundamental rights, it could be used as a guide in developing the common law, depending upon the nature of the relevant provision, the extent of its acceptance by the international community and its relationship to existing principles of domestic law. The Court reasoned that Australia's ratification of the CRC was a statement to the world that the government would act in accordance with the CRC.

(c) Rwandan Trials. At the conclusion of the first two trials in Rwandan courts of the 1,946 mostly Hutus, accused of planning the 1994 massacres of approximately 500,000 victims, mostly Tutsi, human rights groups and the media reported serious irregularities in the trials. Two men, Degratias Bizimana and Egide Gatanazi, were sentenced to death following trials that lasted only several hours. The defendants represented themselves because they were unable to find willing lawyers and because the government, despite Rwandan law's guarantee of a right to counsel, claimed lack of funds to provide them with lawyers. In 1995, the U.N. Human Rights Field Office had proposed providing lawyers for those accused of genocide but the Rwandan government reportedly resisted this offer. Rather than calling witnesses to testify, the prosecutor presented a summary of the witnesses' depositions, a usual procedure in Rwandan courts. Although the defendants had a right to confront their accusers and to ask for witnesses to appear, they did not do so, possibly because they were unaware of their rights. When Bizimana requested an adjournment to prepare his defense, the Court refused. The defendants were to have 15 days to appeal their death penalty sentences.