IN THE NEWS: Arrest in U.S. of Former Warlord from Liberia

This week's arrest in New York of George Boley, Sr., an alleged former Liberian warlord, has highlighted the need to pursue prosecutions for Liberia’s past atrocities if Liberia is currently unable to do so itself. According to recent reports, Boley, Sr. is the former leader of an armed rebel group called the Liberian Peace Council (LPC), which is known to have committed rape, torture, extrajudicial killings, arbitrary detention, and forcible recruitment during the fourteen years of armed conflict in the country that lasted until 2003.

The U.S. Immigration and Customs Enforcement (ICE) has charged Boley, Sr. with holding invalid immigration documents and committing extrajudicial killings overseas (as an immigration violation - not as a criminal charge). Boley Sr. now faces removal from the United States. Like former President Charles Taylor, Sr., he received higher educations degrees in the United States before returning to Liberia and entering politics. In 1997, Boley Sr. made an unsuccessful bid for president of Liberia. In the last twenty years, he has traveled between the US and Liberia while raising a family in the United States.

The 60-year-old appeared before immigration officials today, February 24, and denied all charges against him. Another immigration hearing is scheduled for March 16, 2010. If Boley Sr. is found guilty of the administrative charges against him, he could be deported from the United States back to Liberia. If the judge decides to deport him, Boley Sr. says that he will request political asylum to remain in the United States.

Boley Sr. has claimed that the accusations against him are false and alleges that some Liberians who escaped the civil war used fraudulent allegations about the LPC to strengthen their applications for political asylum in the U.S. ICE is amassing and investigating the allegations of atrocities committed by the LPC under Boley’s tenure for its immigration case. ICE stated that “it will not allow the United States to be a safe haven for those trying to avoid prosecution and punishment for crimes committed in their homelands.” Further, “ICE will not relent in [its] efforts to ensure that human rights violators are brought to justice and removed from our communities.”

However, human rights advocates are calling attention to the fact that Liberia currently lacks credible justice mechanisms to prosecute serious crimes committed during its internal conflicts between 1989 and 2003. In its report last year, Liberia’s Truth and Reconciliation Commission (TRC) maintained that the LPC had committed numerous human rights violations, including massacres and sexual crimes. The TRC, which is an advisory body, recommended that Boley Sr. be prosecuted, though no official action has been taken in Liberia to charge him with any crimes. The TRC's final report highlighted problems in the Liberian justice system and called for the establishment of a hybrid international-national tribunal with Liberian and foreign judges to try past crimes. However, many doubt that Boley Sr. would be brought to justice if returned to Liberia.

The inability of the Liberian justice system to adequately prosecute Boley Sr. raises questions as to the duty of the United States to hold him accountable for his violations of international law. Although at this time, neither country has criminally charged him, advocates are backing the possibility of undertaking criminal investigations against Boley Sr. in the United States.

This situation parallels the case of Charles Taylor, Jr., the American-born son of former Liberian president who is now on trial under the auspices of the Special Court for Sierra Leone. In October 2008, a Florida jury found Taylor Jr. guilty of participating in torture and conspiracy to commit torture within Liberia under a 1994 U.S. law commonly known as the Torture Statute, which implemented the United States' obligations as a State Party to the UN Convention Against Torture and which states that U.S. citizens accused of committing torturous acts overseas can be tried in a U.S. federal court. It is unclear at this time whether Boley Sr. will be charged with any crimes and the human rights abuses with which Boley Sr., a non-U.S. citizen, is accused could be prosecuted in the United States under federal laws prohibiting torture and war crimes committed abroad. What is known is that Boley Sr.’s case could have serious implications for holding human rights abusers accountable for their actions.

You can check out other entries on this blog regarding Charles Taylor, Jr. here. For other cases addressing the accountability of foreign officials in the U.S., read about the Samantar case here. On March 3, 2010, the Supreme Court will hear oral arguments in the case of Samantar, a former Somali government official who is believed to have overseen grave human rights violations in Somalia. The question facing the Court is whether former officials of foreign governments who commit human rights violations abroad can use the U.S. as a “safe haven” to avoid being held accountable for their crimes. Check back here for updates on developments in these and other accountability matters.

Written with assistance from International Justice Project Intern Kacey Mordecai.

IN THE NEWS: DOJ Concludes: No Accountability for Torture Memo Attorneys

Last Friday, the Department of Justice (“DOJ”) cleared Bush administration lawyers John Yoo and Jay Bybee of allegations of professional misconduct for their role in authorizing the use of "enhanced interrogation techniques, some of which are considered to be torture, both domestically and internationally.

In the now-infamous “torture memos,” Yoo and Bybee concluded that CIA interrogators could not be prosecuted for using certain interrogation tactics (some amounting to torture) unless they acted with the specific intent to inflict severe pain. Relying on a statute governing health benefits, they defined severe pain as that equivalent to “death, organ failure or serious impairment of bodily functions.” The authors of the memos also concluded that the president's war powers are practically unlimited, allowing him to, as Yoo told one OPR investigator, "order a village of civilians to be [exterminated]."

The long-awaited DOJ decision came from attorney David Margolis, a DOJ career veteran. Margolis was responsible for conducting a final review of DOJ Office of Professional Responsibility ("OPR") report. The report, issued on July 29, 2009, found that Yoo and Bybee wrote the legal memos with significant input from White House attorneys. The OPR report concluded that Yoo and Bybee had committed professional misconduct, and recommended that OPR's findings be referred to state bar authorities for disciplinary action and potential disbarment. For Bybee, a federal judge, the referral to state bar authorities could have also led to an impeachment inquiry.

After reviewing the OPR report, Margolis declined to adopt OPR's conclusions. Instead, he concluded that Yoo and Bybee merely exhibited "poor judgment" in providing legal authorization for the use of torture. Margolis's decision now means the DOJ will not refer Yoo or Bybee for possible disciplinary action before their respective state bar associations. It is now up to state bar disciplinary authorities to take up this issue on their own.

This about-face demonstrates why Attorney General Eric Holder must appoint an independent prosecutor -- someone unaffiliated with the DOJ, the department responsible for the legal authorization of detainee abuse policies -- to conduct a full and impartial investigation into the origins of those policies. Americans deserve to know whether, and to what extent, publicly-elected officials were involved in unlawful conduct.

The DOJ report and related documents are available here.

With assistance from International Justice Project intern Lindsey Ingraham.

IN THE NEWS: Koh and Bellinger on International Law in the U.S.

As Washington, DC gets back up and running after last week's severe snow storm, a large group of people (ok, ok, mostly lawyers) interested in international law gathered yesterday to hear Harold Koh, Legal Advisor to the State Department, and his predecessor, John Bellinger III, speak about the role of the Office of the Legal Advisor and the status of international law in the United States. Koh likened the Obama administration’s record over the past year to digging out from a snowstorm, noting that “[i]t takes a lot more time to dig out from a snowstorm than it does for the snow to fall.”

Last month marked the anniversary of President Obama’s signing three executive orders that were intended to signal a shift in U.S. foreign policy. They ordered (1) the closing of Guantanamo Bay; (2) the suspension of the C.I.A. interrogation program; and (3) the review of all U.S. government detention policies and legal positions. Although these executive orders were met with wide acclaim across the international community, the Obama administration continues to face difficulty implementing them.

Koh noted that implementing the executive orders and other foreign policy initiatives will take time. “We have been tasked with unwinding policies that we would not have implemented,” Koh said. When further questioned by Bellinger why the Obama administration had not acted swiftly in forging stronger ties with the International Court of Justice, Koh replied that addressing these issues would require an act by Congress.

Koh also addressed the need for the United States to ratify several treaties - including the Convention on the Rights of the Child (CRC) and the Convention for the Elimination of Discrimination Against Women (CEDAW). Having been confirmed by 62 votes, Koh joked that he "knows how a treaty feels," as treaties require 67 votes to be ratified by the U.S. Senate.

To read further coverage of the event, click here. The event was broadcast by C-SPAN - to watch this interesting and entertaining discussion, click here.

Prepared with the assistance of International Justice Project Intern Daniel Cousineau.

REFLECTION: The Civil Judgment against Taylor Jr. - What does it mean?

On February 5, 2010, while preparing for what has been called the "snowpocalypse" here in Washington, DC, we at Human Rights USA learned that the Court in our civil case against Charles Taylor, Jr. ("Taylor Jr.") had awarded a total of $22.4 million in damages to our five clients for the atrocities they endured at the hands of Taylor Jr. and the Anti-Terrorism Unit (ATU) forces under his command. As we shared the exciting news with our clients, colleagues, and the media, we faced the question: "What does this decision mean? What does it mean to the plaintiffs – to the legal community – to potential defendants – and to the world?"

Law students at the University of Pittsburgh invited us to comment on exactly these questions. To read our responses as they appear in the JURIST Hotline section of the school's online journal, click here.

BREAKING NEWS: Final Judgment Issued in Civil Case Against Charles Taylor, Jr. – Plaintiffs Awarded $22.4 Million

On Friday, February 5, 2010, the court in the civil case against Charles Taylor, Jr. awarded a total of $22.4 million in damages to our five clients for the atrocities they endured at the hands of Taylor Jr. and the Anti-Terrorism Unit (ATU) forces under his command. Piper Hendricks, International Justice Project Director for the World Organization for Human Rights USA, states, “We are pleased that this significant award recognizes the egregious nature of the extraordinarily brutal acts our clients suffered and the lasting impact those acts have had. This award will serve as a deterrent to others who believe they could mistreat fellow humans in this manner and never be held accountable.”

The order on damages outlines the multiple forms of torture; cruel, inhuman, or degrading punishment or treatment; arbitrary arrest and prolonged detention to which the plaintiffs were subjected and recognizes the past, present and future physical and mental suffering those abuses inflicted. As the order states, “Mr. Taylor’s horrific and repeated actions, as detailed in the complaint and testified to by the plaintiffs, are a chilling example of man’s inhumanity to man, to borrow a phrase from Robert Burns. Such actions, because they were designed to strip the plaintiffs of their humanity and dignity, deserve the strongest judicial condemnation […].”

The plaintiffs in this case are represented by the World Organization for Human Rights USA, with assistance from the Carlos A. Costa Legal Clinic of Florida International University. Our next step in this matter is to enforce this judgment. This significant award can allow our clients to cover the financial burdens they face because of Taylor Jr. and offer a better chance of making the most of the lives they now lead. Any assets recovered will provide a remedy to the plaintiffs for past and ongoing medical expenses, psychological harms, lost wages, destroyed property, other damages inflicted.


For a PDF of the official press release, click here.

To read coverage from Curt Anderson of the Associated Press, read his Washington Post article here.

Spanish court to investigate Guantanamo torture allegations

Last May, we reported that a Spanish court was considering whether to open an investigation into the role of six Bush administration attorneys allegedly responsible for constructing a legal framework for detainee torture. At the same time the court was considering that petition, it was also debating whether to investigate allegations of torture, abuse, and inhuman and degrading treatment inflicted upon four former Guantanamo detainees. This post provides an update on the status of the Spanish court's deliberations with respect to the latter case.

Last year, Spain's National Court received complaints filed by a number of organizations regarding abuse allegedly inflicted upon four former Guantanamo detainees, including one Spanish citizen and three individuals apparently connected to Spain.

After receiving the complaints, but before opening an investigation, Judge Baltasar Garzon asked U.S. Attorney General Eric Holder to inform him whether the U.S. government planned to investigate these allegations itself. (Under the principle of universal jurisdiction, Spain can exercise criminal jurisdiction over a case involving the commission of serious human rights crimes by U.S. citizens only if the U.S. government refuses, or fails, to take action.)

After waiting seven months with no reply, Judge Garzon has now decided to open an investigation into the abuses inflicted upon the four former detainees.

At a time when the Obama administration has failed to take significant steps towards investigating the numerous claims of detainee abuse and torture alleged over the past several years, Judge Garzon's decision represents a bold step toward accountability for human rights violations.

At the same time, Judge Garzon's decision should serve as a reminder to the Obama administration of its own obligation, under international law, to investigate and prosecute serious human rights abuses. Under universal jurisdiction principles, Judge Garzon is able to pursue this investigation because the U.S. government has so far refused, or failed, to take action.

Despite the administration's purported commitment to transparency and accountability, it has failed to apply these principles in the area of human rights.

ON THE RADAR SCREEN

Google and the National Security Agency have announced a "cooperative research and development agreement" designed to address the sophisticated cyber attacks on Google in the past several months. We will continue to update our readers as more information comes to light on this issue

For more, visit the Wall Street Journal and the New York Times.

In the News: Updates re China and Google

The United States Senate continues to keep an eye on the human rights practices of technology companies, as evidenced by an announcement by Senator Dick Durbin (D-IL) that the Judiciary Subcommittee on Human Rights and the Law will hold a hearing this month on global Internet freedom. Read the release from his Office here. On Tuesday, February 2, 2010, in response to the recent cyber attacks against Google in China (for more, on our coverage of that event click here and here), Durbin asked 30 leading companies, including Amazon, Apple, Facebook, IBM, Nokia and Twitter, for information about their human rights practices in China. Stay tuned for more on the hearing...

In the meantime, we thought our readers might be interested in knowing what Bill Gates has to say about Google's announcement. According to the New York Times, "Mr. Gates declared himself unimpressed and a bit perplexed by Google’s recent threat to drop its search business in China to protest Chinese censorship of search after attacks apparently intended to spy on Gmail accounts of human-rights activists. 'They’ve done nothing and gotten a lot of credit for it,' Mr. Gates said." Let's hope they DO something soon. For the full article, click here.

In the News: Can you live in the U.S. but claim its laws don’t apply to you?

The Supreme Court is on the verge of a decision that could have a tremendous impact on human rights law in the U.S. On March 3, 2010, the Court will hear oral arguments in the case of a former Somali government official who is believed to have overseen grave human rights violations in Somalia. The question facing the Court is whether former officials of foreign governments who commit human rights violations abroad can use the U.S. as a “safe haven” to avoid being held accountable for their crimes? (Can you guess which side we’re on in this one?)

“How could the U.S. be a ‘safe haven’ for such people?” you ask? Under FSIA (the Foreign Sovereign Immunities Act), a foreign state, its agencies and instrumentalities acting under that government’s authority are immune from the jurisdiction of U.S. courts - unless certain exceptions are met. The District Court dismissed the case, finding FSIA applies and Samantar is immune from liability. The Appellate Court reversed, finding FSIA does not grant immunity to individual government officials and, even if it did, FSIA does not apply to those who are not still government officials when the suit against them is filed. So to whom does FSIA’s immunity apply? And for how long can they hide under its coverage? That’s now for the Supreme Court to decide…

In the meantime, we provide some background for our readers:

In the 1980s, under the direction of General Siad Barre, the Somali Armed Forces tortured, imprisoned and summarily executed civilians accused of supporting the opposition party, the Somali National Movement.

Mohamed Ali Samantar served as Vice President, Minister of Defense, and Prime Minister under General Barre. Under Samantar’s command, the Somali government waged brutal attacks against civilians. Samantar personally oversaw the aerial and ground assault on Somalia’s second largest city in which over 5,000 residents were killed. After Barre and his supporters were ousted from Somalia in 1991, Samantar fled to the United States. He currently lives in Fairfax, Virginia.

Somalis living in the United States and in Somalia brought suit against Samantar for abuses suffered by them and their families during Samantar’s tenure. On November 10, 2004, several Somalis, ably represented by the Center for Justice and Accountability, filed suit under the Torture Victims Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”) in the Eastern District of Virginia. The suit alleges that Samantar had command responsibility for: extrajudicial killing; arbitrary detention; torture and cruel, inhuman or degrading treatment; crimes against humanity and war crimes carried out by his subordinates. In response, Samantar claimed immunity from suit under the FSIA. The District Court agreed and dismissed the case.

On appeal, the Fourth Circuit reversed the District Court’s opinion, concluding that Congress did not intend the FSIA to apply to individual foreign government agents like Samantar, and that individuals are not considered “agencies or instrumentalities of the state.” The Fourth Circuit held that even if an individual foreign official could be an “agency or instrumentality” under the FSIA, immunity would be available only if the individual were still an “agency or instrumentality” at the time of the suit, meaning that former government officials could not use immunity to avoid accountability.

The Supreme Court of the United States granted certiorari in this case on September 30, 2009, and will address (1) whether a foreign state’s immunity from suit under the FSIA extends to an individual; and (2) whether an individual who is no longer an official of a foreign state retains immunity for acts committed while s/he was acting in that capacity.

This case has attracted widespread attention with everyone from the U.S. Congress to foreign governments weighing in. Over the course of the case, Senators Arlen Spector and Russ Feingold, and Congresswoman Sheila Jackson Lee signed an amicus brief in support of the plaintiffs. The Kingdom of Saudi Arabia has also voiced an opinion, submitting an amicus brief in support of Samantar, arguing foreign sovereign immunity should apply. Several human rights organizations, including Human Rights USA, signed an amicus brief at the appellate level and again before the Supreme Court arguing that former government officials are not immune from suit; foreign officials who have committed torture and other human rights abuses should not be able to use U.S. soil and U.S. law as a safe haven.

If the Supreme Court reverses the Fourth Circuit’s decision and sides with Samantar, it would fundamentally undermine the principle that torturers should not enjoy safe haven in the United States. Congress passed the TVPA to ensure that courts could hear suits by survivors of torture, including those against former government officials. The TVPA states that foreign government officials who commit torture must be held accountable when the alleged torturer has chosen to live in the United States and an effective judicial system is unavailable in the country where the crimes were committed. Allowing former officials who have committed torture to claim immunity would strip many torture survivors of the access to justice that Congress specifically constructed in enacting the TVPA, including American students brutalized while overseas, relief workers targeted while on vital aid missions, and U.S. government personnel – civilian or military – tortured while on foreign assignments.

In contrast, affirming the Fourth Circuit opinion (finding FSIA does not apply to Samantar) would confirm that victims of torture have the right to face their abusers in court and seek redress for the atrocities that they have suffered. This case would establish once and for all that torturers cannot seek impunity in the United States – that they are not above the law and will be held responsible for their acts. To guarantee that survivors of torture continue to have access to justice in U.S. courts, the Supreme Court should hold that FSIA immunity does not extend to former government officials.



For coverage in the New York Times, click here.



Prepared with the assistance of International Justice Project Interns Kacey Mordecai and Lindsey Ingraham.

Human Trafficking in the United States

Human trafficking is a form of modern day slavery that, after drug dealing, is the second largest criminal industry worldwide; however, due to the nature of human trafficking, it is often difficult to detect and has thus gone widely unprosecuted. According to U.S. Government-sponsored research, each year, approximately 800,000 people are trafficked across national borders into slavery, not including the millions trafficked within their own countries. Victims of trafficking include men, women, teens, and children who are often recruited through forced abduction, pressure from parents, or deception between traffickers and the victim or victim’s parents. Once trafficking occurs, victims are usually transported far from friends and family and kept in isolated surroundings under constant threats of violence or other forms of physical and mental coercion. Traffickers may also confiscate a victim’s visa, passport, or money, making it impossible to leave the situation. Human trafficking may be for the purpose of sex or forced labor: victims often work as prostitutes, domestic servants, or workers in restaurants, sweatshop factories or agriculture for little or no pay and under inhumane conditions.

Although human trafficking has been denounced by several international conventions as a violation of human rights and international norms, no federal law existed on the subject until October of 2000 when the Trafficking Victims Protection Act of 2000 (TVPA) was passed. The TVPA makes trafficking of humans a federal crime and was enacted in order to prevent human trafficking overseas, to protect victims in the U.S., and to prosecute traffickers under federal law. Further, the 2003 reauthorization of the TVPA created a civil remedy allowing survivors of trafficking to collect damages from their traffickers in order to better punish and deter traffickers and compensate victims.

Since 2000, over half of the world’s governments have enacted laws making human trafficking a crime. Despite these efforts, human trafficking often goes undetected and under-prosecuted; however, more attention and publicity has been given to the issue in recent years. In the international arena, Haitian officials have expressed concern over allegations of human trafficking involving children and the sale of human organs following the devastating earthquake on January 12, 2010.

Human trafficking is just as large of a concern in the United States. In South Florida, a concerned citizen’s tip of unusual activity at a suburban house helped uncover a prostitution ring operating out of a network of homes in which trafficked women were forced into the sex trade. In Hawaii, farm owners recently plead guilty to forced labor of workers illegally imported from Thailand. In an effort to toughen state laws against human trafficking, a bill was recently reviewed by a Kansas Senate committee that would make coerced employment a crime punishable by time in prison and would allow police to seize assets of human trafficking rings.

These are just some of the most recent stories involving human trafficking in the news. The problem is ongoing and though it has received more attention recently, we must also act to help rehabilitate victims, punish traffickers, and end the practice of human trafficking. In an effort to compensate trafficking survivors for the violations of their human rights, Human Rights USA is working with the George Washington University Law School International Human Rights Clinic to seek civil damages for victims of human trafficking.

-By Shilpa Deshpande, Legal Intern, Refugee & Detention Project