PHRGE in Geneva: Day 2

Originally posted on Fellow Talk:

Here’s the rundown on my second day in Geneva where I am representing PHRGE at the civil society consultation with the Committee overseeing implementation of the International Covenant on the Elimination of all Forms of Racial Discrimination (ICERD).  In this video post I go over parts of the Convention language and UN commentary we are using in our advocacy about access to justice in civil cases.  If you want to follow along, here is the text of the Convention, and here are the 2008 Concluding Observations.  Also here are some photos of the Palais Wilson, where today’s opening session was held.

 Palais Wilson Opening SessionPalais Wilson

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PHRGE in Geneva: Day 1

phrgenusl:

Northeastern Law student, Hannah Adams is video blogging from the CERD review in Geneva. Her particular job there is to encourage the CERD committee to make recommendations to the U.S. government to halt racial discrimination in the area of access to justice in the United States.

Originally posted on Fellow Talk:

See the video below for an update from Hannah Adams (NUSL 2015) who is representing the Program on Human Rights and the Global Economy at the United Nations review of the U.S.’s performance of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in Geneva, Switzerland.  Check out PHRGE and the Columbia Law School Human Rights Institute’s shadow report on access to justice in civil cases here.  Also here is the U.S. Human Rights Network’s page with some useful info on the CERD review.

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Prelude to an Extradition?

Montano CISPESOn August 27, 2013, a U.S. federal district court in Boston sentenced Salvadoran former Col. Inocente Montano to 21-months in prison for immigration fraud and perjury. The court found that Montano had lied on two applications for Temporary Protected Status in the United States by affirming that he had never been involved in the persecution of anyone because of political opinion or membership in a social group.

Col. Montano was a senior military commander in El Salvador before entering the U.S. in 2001. His military history was at the core of the government’s argument against him. Stanford University Professor Terry Karl, an expert for the government, testified that Col. Montano was among those responsible for killings of Jesuit priests, their housekeeper, and her 16-year-old daughter in 1989 at the University of Central America (UCA). Prof. Karl discussed Col. Montano’s military background and his involvement with many human rights violations during the 12-year-long civil war in El Salvador in her expert report.

Universal jurisdictionThe Boston immigration case was not the only judicial action against Montano. The Colonel was also among those named in a case brought in Spain by the Center for Justice and Accountability (CJA) under that country’s universal jurisdiction law. The Spanish case names several former Salvadoran military commanders as responsible for the Jesuit killings.

The Spanish Government recently sent an extradition request for Montano to the United States Department of Justice. The Colonel is entitled to a hearing regarding this request. If the government responds positively to the request, however, it is quite possible that Montano could be extradited before his release date in the Boston case.

Montano at courthouseWhile in U.S. custody, Montano is particularly vulnerable to extradition to Spain.  During his sentencing hearing, much of the testimony focused on alleged human rights violations, which had implications for the case against him in the Spanish courts. Another reason for Montano’s vulnerability is that, in contrast to other defendants in the Spanish case, Montano cannot take advantage of impunity by residing in El Salvador.  Thus, Montano will most likely face extradition to Spain for alleged human rights violations. Both his vulnerability to extradition and the focus of the Boston case testimonies on alleged human rights violations lend significance to the U.S. immigration case against Montano.

PinochetThrough the case of the Chilean former president, Augusto Pinochet, the world witnessed that the application of universal jurisdiction is not theoretical but practical. In the case of the former Chilean coup leader, Spain applied international law effectively in trying Pinochet for crimes against humanity. The Pinochet case is a milestone in the post-Nuremberg application of international human rights law. CJA and other human rights organizations believe that the Jesuit massacre case will be the second example of the effective application of universal jurisdiction. Perhaps foreshadowing this eventuality, during the Montano sentencing hearing Judge Douglas P. Woodlock referenced the Nuremberg trials, saying, “In El Salvador, there was a war, there are victims, and there has been a crime.”

Posted by PHRGE Post-Graduate Fellow, Duygu Sener and Kevin Murray

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Reporting on Remy: The Media’s Role in Domestic Violence Awareness

phrgenusl:

The Domestic Violence Institute, where Katherine Schulte works as Supervising Attorney, is co-sponsoring PHRGE’s 2013 Human Rights Institute on “Human rights and Domestic Violence: Applying the Due Diligence Principle”. The Institute will take place at NUSL on November 7, 2013.

Originally posted on NUSL BLOGS:

by Katherine Schulte, Supervising Attorney, Domestic Violence Institute at Northeastern University School of Law

“Any information from the purported victim?”

“Nothing definite, judge…the information I have is that she’s not here….about whether she’s coming later today, I don’t know.”

“I understand, but at least she’s not here now, so there’s no reason for me to hold this situation and address it?”

This is an excerpt from a transcript of the August 14th hearing in which Jared Remy, son of the famed Red Sox broadcaster, was charged with assaulting his girlfriend Jennifer Martel.  The night before he had been arrested for slamming her face into a mirror.  Martel was granted an emergency restraining order that night, but, as the above exchange shows, chose not to come to court to extend it the following morning. Remy was released with a warning not to abuse Martel.  The next day, she was dead.

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Court Strikes Down Oklahoma Amendment

Posted by Professor Martha Davis, Northeastern University School of Law

Coourt StrikesOn August 15, a federal district court in Oklahoma struck down the state’s constitutional amendment barring consideration by state court judges of Sharia law, international law and “legal precepts of other nations or cultures.”  The amendment was passed by public referendum in November 2010, garnering more than 70 percent of the popular vote; it had been subject to a preliminary injunction since its enactment, and the 10th Circuit Court of Appeals previously ruled that the amendment’s anti-Sharia language likely violated the first amendment.  The August 15 district court opinion entered a permanent injunction striking down the amendment.  Though the Court of Appeals has already indicated its view of the first amendment issue, the state may yet decide to appeal this most recent ruling to the 10th Circuit Court of Appeals.

Despite its legal infirmity, Oklahoma’s enactment triggered a wave of similar proposals in at least 32 other states.  While most were not enacted, neighboring Kansas adopted an anti-Sharia statute, as did South Dakota, Tennessee and a handful of other states.   The wave has not lost steam, as still more proposals – notably in Florida and North Carolina — were considered in states’ most recent legislative sessions.

Not the EnemyIn contrast to Oklahoma’s constitutional amendment, most of the subsequent proposals and state enactments have not singled out Sharia law for particular scrutiny, but have imposed general bans on judicial consideration of foreign or international law.  At the same time, the debates around the proposals have been fueled by anti-Sharia sentiments and unsupported fears that state courts are being co-opted by Islamic extremists.  Legal challenges have yet to be mounted against these measures, but the Oklahoma ruling suggests that even in the absence of explicit reference to Sharia law, these more neutrally worded statutes still run afoul of first amendment protections.

The American Bar Association has taken a strong stand against these proposals.  Not only do attempts to ban consideration of Sharia law violate the first amendment, but more extensive attempts to ban consideration of international and foreign law altogether are directly contrary to our common law legal system as well as, in some instances, the Supremacy Clause of the United States Constitution.  Certainly, they compromise judicial independence and violate notions of separations of power.  Further, many business groups have expressed a bottom line concern about these measures, which may make it difficult for international businesses to operate within affected states.  For example, Oklahoma’s oil business would have been negatively affected had the ban gone forward, since many of the contracts under which companies operate are explicitly subject to foreign law.  If the ban had been upheld, companies could not have relied on Oklahoma courts to enforce their contracts, since judicial enforcement would be impossible without analysis of foreign law.  Similar dilemmas may arise in the family law area, where couples may have been married under foreign law (two of the Oklahoma plaintiffs were married under Scotland law), yet are seeking dissolution of the marriage in state courts.  If a judge cannot consider foreign law, it may be impossible for the court to ascertain at the outset whether the marriage is even valid.

More affirmatively, state courts and judges may benefit immensely from looking to other legal regimes for inspiration and models.  In the age of internet and international travel, more and more judges are knowledgeable about the larger international context for their decisions – and surely the public deserves judges who are exercising this sort of wisdom.  The U.S. Supreme Court, for example, has repeatedly cited international human rights law in its consideration of the death penalty in the U.S.  While the Court’s decisions are indisputably supported by U.S. law, reference to international human rights standards is an important touchstone  in ascertaining whether the U.S. is living up to its constitutional and international commitments.  This is equally true at the state level, since states bear significant responsibility for implementing many of our national human rights obligations, from civil rights to housing to access to water.  The blinders required by the erstwhile Oklahoma law and its copy-cat successors would be a troubling step backward for our independent judiciary, a system of courts and judges that is currently the envy of the world

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