Behind all the news coverage of the protests in Iran last summer, you may recall an unsettling story about a group of three Americans hiking in Iraqi Kurdistan who were arrested by Iranian police on July 31, 2009 for having accidentally crossed an unmarked border into Iranian territory. Shane Bauer, Joshua Fattal and Sarah Shourd are all graduates of UC Berkeley who, according to their families, crossed the border because they were lost. Nine months later, they remain in Evin prison, detained indefinitely on vague allegations of espionage.
As of today, according to a recent Op-Ed in the New York Times, Iranian officials have not been able to gather enough evidence to bring them to court, let alone agree on charges against them. The Iranian government has allowed only three consular visits from Swiss diplomats, and has given the hikers one opportunity to speak with their families over the phone. Despite repeated pleas, their mothers still do not have Iranian visas to visit their children. And time may be running out. Recent reports on the hikers’ conditions have shown rapid mental and physical deterioration; they are also allegedly planning a hunger strike.
The three hikers have received disproportionate punishment for their inadvertent actions. According to the hikers’ Iranian lawyer, Massoud Shafie, who has not been allowed to visit his clients, illegal border crossing carries the punishment of monetary fines, not imprisonment. The Iranian government’s denial of basic due process rights and alleged physical and psychological maltreatment of the hikers cannot be justified by the broader political stalemate between Iran and the U.S.; it is unfortunate that these young Americans are being used as pawns in a conflict beyond their control.
At the same time, we note that Iran’s gross human rights violations highlight yet another reason for the United States to demonstrate its own adherence to universal human rights standards. Protecting human rights at home is not just an ideal; it is in our own best interest. Being a human rights leader in the world helps prevent Americans from being targeted in this way, and gives the United States the moral leverage to garner international support needed to bring them home.
Human Rights USA supports the families of Shane, Joshua and Sarah and strongly urges the Iranian government to respect their human rights.
To sign a petition to be delievered to the Islamic Republic of Iran’s Mission to the United Nations, or to write a letter, please visit freethehikers.org.
Prepared by HR USA Intern Alex Burchfield.
Friday, April 30, 2010
Monday, April 26, 2010
Is health care a human right?
In light of the intense debate over health care in the United States and recent passage of a law addressing the health care system here, many of our readers have asked us: is health care is a human right and, if so, what does that right entail?
To answer, let’s take a step back and look at human rights in general. Human Rights are defined as the basic rights and freedoms to which all human beings are entitled. A nation is obliged to recognize the human rights of its citizens and ensure their protection. Though the right to health has been recognized in international treaties and declarations, nations (often referred to in international documents as “States”) there is debate about just what this right entails and how far a government’s responsibility for its citizens’ health extends. It is generally accepted that the right to health has two components: the right to health care and a right to health conditions.
The Universal Declaration of Human Rights (UDHR), which the majority of States in the world have signed, declares a universal right to, at a minimum, “adequate” health care. Article 25 of the UDHR states that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care...” The UDHR is not binding as treaty law on States, but is part of international customary law and the rights contained within are legal standards for States to follow.
Similarly, the constitution of the World Health Organization (WHO), the public health arm of the United Nations, states “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
The International Covenant on Economic, Social and Cultural Rights (CESCR) is arguably the most important instrument relating to the right to health and is binding on signatory States. In Article 12, the Covenant states that the parties to the Covenant “recognize the right of everyone to the enjoyment of the highest attainable standard of physical health.” The CESCR has interpreted the right to health as “an inclusive right extending not only to timely and appropriate health care, but also to the underlying determinants of health.” The States that sign the CESCR pledge to take steps to the maximum that they can to achieve the rights outlined in the Covenant, including ensuring the right to physical health. The United States has not signed the CESCR, but 160 countries, a large majority of countries in the world, are parties to the treaty and are committed to working towards progressive realization of this right.
In reviewing the language of these documents, one might wonder what “highest attainable” means, especially given the disparities in resources around the world. As Amnesty International has explained, the right to health -
“should not be seen as a right to be healthy. The state cannot be expected to provide people with protection against every possible cause of ill health or disability. Nor should the right to health be seen as a limitless right to receive medical care for any and every illness or disability that may be contracted. Instead, the right to health should be understood as a right to the enjoyment of a variety of facilities and conditions which the state is responsible for providing as being necessary for the attainment and maintenance of good health.”
So what exactly does this mean for governments?
There are generally recognized “components of the right to health care”[1] that most advocates would agree apply to governments including: universal and equitable access, adequate health care infrastructure that is available in all geographic areas, respect for citizens’ dignity, and care that is medically appropriate and of good quality.
Some States have gone further than these general guidelines in recognizing the right to health care in their Constitutions and outlining the responsibilities of their government in protecting this right. In South Africa, for example, the right to health care is part of the nation’s Bill of Rights. Duties of the South African government include disseminating appropriate health information, refraining from denying or limiting access to health care services to anyone, and supporting people in making informed choices about their health. The new Charter of Fundamental Rights of the European Union (EU) states “everyone has the right of access to preventative health care.” The EU is to ensure “a high level of human health protection… in the definition and implementation of all Union policies.” Most industrialized nations[2] have adopted a national health care plan ensuring access to health care for all citizens.
What about poorer countries?
Some may argue that States, especially poorer ones, will likely not have the money to dedicate to achieving such broad health care provisions for all their citizens. However, even if this is the case, a lack of available resources is never a valid excuse for a government not protecting fundamental rights, including the rights to health and healthcare. Consideration of the different status of States’ economies and societies is reflected in the concept of “progressive realization.” Furthermore, the Office of the UN Human Rights Commissioner has stated “the phrase must be read in light of the overall objective… of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question.” The obligation to realize the right to health is not in any way eliminated as a result of resource constraints.
What about the United States?
While a candidate for office, President Obama stated that health care is a right and not a privilege. This position is consistent with the United States’ history of state-provided health care, a right for which both Presidents Theodore and Franklin Roosevelt advocated. Supporters of the new health care legislation state that it aims to provide more affordable, better quality healthcare to all Americans. These goals would address the universal and equitable access component of the right to health care. Many aspects of the law will not be in place until 2014, and it remains to be seen whether the law will adequately fulfill Americans’ right to health care.
__________________
[1] The National Health Law Program’s Right to Health Care, available at www.nesri.org/fact_sheets.../Right%20to%20Health%20Care.pdf
[2] Id.
Prepared by International Justice Project Intern Kacey Mordecai.
To answer, let’s take a step back and look at human rights in general. Human Rights are defined as the basic rights and freedoms to which all human beings are entitled. A nation is obliged to recognize the human rights of its citizens and ensure their protection. Though the right to health has been recognized in international treaties and declarations, nations (often referred to in international documents as “States”) there is debate about just what this right entails and how far a government’s responsibility for its citizens’ health extends. It is generally accepted that the right to health has two components: the right to health care and a right to health conditions.
The Universal Declaration of Human Rights (UDHR), which the majority of States in the world have signed, declares a universal right to, at a minimum, “adequate” health care. Article 25 of the UDHR states that “[e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care...” The UDHR is not binding as treaty law on States, but is part of international customary law and the rights contained within are legal standards for States to follow.
Similarly, the constitution of the World Health Organization (WHO), the public health arm of the United Nations, states “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition.”
The International Covenant on Economic, Social and Cultural Rights (CESCR) is arguably the most important instrument relating to the right to health and is binding on signatory States. In Article 12, the Covenant states that the parties to the Covenant “recognize the right of everyone to the enjoyment of the highest attainable standard of physical health.” The CESCR has interpreted the right to health as “an inclusive right extending not only to timely and appropriate health care, but also to the underlying determinants of health.” The States that sign the CESCR pledge to take steps to the maximum that they can to achieve the rights outlined in the Covenant, including ensuring the right to physical health. The United States has not signed the CESCR, but 160 countries, a large majority of countries in the world, are parties to the treaty and are committed to working towards progressive realization of this right.
In reviewing the language of these documents, one might wonder what “highest attainable” means, especially given the disparities in resources around the world. As Amnesty International has explained, the right to health -
“should not be seen as a right to be healthy. The state cannot be expected to provide people with protection against every possible cause of ill health or disability. Nor should the right to health be seen as a limitless right to receive medical care for any and every illness or disability that may be contracted. Instead, the right to health should be understood as a right to the enjoyment of a variety of facilities and conditions which the state is responsible for providing as being necessary for the attainment and maintenance of good health.”
So what exactly does this mean for governments?
There are generally recognized “components of the right to health care”[1] that most advocates would agree apply to governments including: universal and equitable access, adequate health care infrastructure that is available in all geographic areas, respect for citizens’ dignity, and care that is medically appropriate and of good quality.
Some States have gone further than these general guidelines in recognizing the right to health care in their Constitutions and outlining the responsibilities of their government in protecting this right. In South Africa, for example, the right to health care is part of the nation’s Bill of Rights. Duties of the South African government include disseminating appropriate health information, refraining from denying or limiting access to health care services to anyone, and supporting people in making informed choices about their health. The new Charter of Fundamental Rights of the European Union (EU) states “everyone has the right of access to preventative health care.” The EU is to ensure “a high level of human health protection… in the definition and implementation of all Union policies.” Most industrialized nations[2] have adopted a national health care plan ensuring access to health care for all citizens.
What about poorer countries?
Some may argue that States, especially poorer ones, will likely not have the money to dedicate to achieving such broad health care provisions for all their citizens. However, even if this is the case, a lack of available resources is never a valid excuse for a government not protecting fundamental rights, including the rights to health and healthcare. Consideration of the different status of States’ economies and societies is reflected in the concept of “progressive realization.” Furthermore, the Office of the UN Human Rights Commissioner has stated “the phrase must be read in light of the overall objective… of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question.” The obligation to realize the right to health is not in any way eliminated as a result of resource constraints.
What about the United States?
While a candidate for office, President Obama stated that health care is a right and not a privilege. This position is consistent with the United States’ history of state-provided health care, a right for which both Presidents Theodore and Franklin Roosevelt advocated. Supporters of the new health care legislation state that it aims to provide more affordable, better quality healthcare to all Americans. These goals would address the universal and equitable access component of the right to health care. Many aspects of the law will not be in place until 2014, and it remains to be seen whether the law will adequately fulfill Americans’ right to health care.
__________________
[1] The National Health Law Program’s Right to Health Care, available at www.nesri.org/fact_sheets.../Right%20to%20Health%20Care.pdf
[2] Id.
Prepared by International Justice Project Intern Kacey Mordecai.
Wednesday, April 21, 2010
International Advocacy: UN Universal Periodic Review
Human Rights USA was one of the lead authors in a report submitted yesterday to the United Nations Office of the High Commissioner for Human Rights. The Treaty Ratification report -- compiled with seven co-authors and with endorsements from 53 other human rights organizations and law professors -- details the systemic shortcomings resulting from the United States’ failure to ratify fundamental treaties like the Convention on the Rights of the Child (CRC), the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR).
The report also explains the loopholes in domestic human rights enforcement that exist because treaties the United States has ratified – for example, the Convention to Eliminate All Forms of Racial Discrimination (CERD) and the International Covenant on Civil and Political Rights (ICCPR) – are not fully implemented in federal or state statutes.
To address these concerns, the report’s authors and endorsers ask the UN Human Rights Council to recommend the following steps to extend and enhance domestic law protections in the United States:
1. Take immediate steps to ratify key international human rights treaties and interpret rights contained within ratified treaties in line with international human rights standards, including protections of economic, social and cultural rights;
2. Remove any reservations, understandings and declarations (RUDs) that undermine compliance with, or violate the object and purpose of, treaties;
3. Adopt implementing legislation and optional protocols to ensure treaties are enforceable and that domestic law is in full compliance with treaty obligations; and
4. Establish federal mechanisms to ensure comprehensive coordination and monitoring of treaty implementation and federal, state and local compliance with international human rights obligations.
In November 2010, the United Nations Human Rights Council will review this report, and others submitted by NGOs, in its Universal Periodic Review of the United States’ human rights record. The UPR process is a tool for investigating all UN member states’ track records to ensure they are abiding by universal human rights norms. Human Rights USA is proud to have contributed to this report, and to be a member of the US Human Rights Network, a coalition of U.S.-based civil society organizations working to improve human rights protections in the United States.
The report also explains the loopholes in domestic human rights enforcement that exist because treaties the United States has ratified – for example, the Convention to Eliminate All Forms of Racial Discrimination (CERD) and the International Covenant on Civil and Political Rights (ICCPR) – are not fully implemented in federal or state statutes.
To address these concerns, the report’s authors and endorsers ask the UN Human Rights Council to recommend the following steps to extend and enhance domestic law protections in the United States:
1. Take immediate steps to ratify key international human rights treaties and interpret rights contained within ratified treaties in line with international human rights standards, including protections of economic, social and cultural rights;
2. Remove any reservations, understandings and declarations (RUDs) that undermine compliance with, or violate the object and purpose of, treaties;
3. Adopt implementing legislation and optional protocols to ensure treaties are enforceable and that domestic law is in full compliance with treaty obligations; and
4. Establish federal mechanisms to ensure comprehensive coordination and monitoring of treaty implementation and federal, state and local compliance with international human rights obligations.
In November 2010, the United Nations Human Rights Council will review this report, and others submitted by NGOs, in its Universal Periodic Review of the United States’ human rights record. The UPR process is a tool for investigating all UN member states’ track records to ensure they are abiding by universal human rights norms. Human Rights USA is proud to have contributed to this report, and to be a member of the US Human Rights Network, a coalition of U.S.-based civil society organizations working to improve human rights protections in the United States.
Tuesday, March 23, 2010
IN THE NEWS: Google Takes Action
Human Rights USA applauds Google's decision to turn its words into action by shutting down its search service in the Chinese mainland. As we shared with you several months ago, Google threatened to no longer bow to Beijing's demands following a cyber-attack that allegedly originated in China. Yesterday, Google stated it would stop censoring search results on its site in China and began to route users through its site in Hong Kong.
Unfortunately, Chinese government censors are now censoring results routed through the Google Hong Kong sites. Click here to see Google's Mainland China service availability. Stay tuned here for further developments....
Unfortunately, Chinese government censors are now censoring results routed through the Google Hong Kong sites. Click here to see Google's Mainland China service availability. Stay tuned here for further developments....
Tuesday, March 9, 2010
IN THE NEWS: Case Against Rumsfeld for Mistreatment of American Citizens Goes Forward
Last Friday, on March 5, 2010, a U.S. judge Judge Wayne R. Anderson (N.D. Ill.) allowed a suit against former Defense Secretary Donald Rumsfeld to go forward (in legalese: the case survived a motion to dismiss). The complaint, which alleges that Rumsfeld authorized torture against U.S. citizens, survived despite the defendant’s vigorous claims of immunity (see our earlier blog entry for more discussion of immunity issues).
According to the Complaint, in 2005, Donald Vance and Nathan Ertel, both American citizens, traveled to Iraq to work for an Iraqi security firm, Shield Group Security (SGS). After suspecting that SGS was paying off local sheiks for influence in obtaining government contracts, Vance and Ertel informed the FBI in Chicago and U.S. officials in Iraq. When SGS officials threatened their lives for revealing company information, Vance and Ertel sought protection from the U.S. military. However, after interrogating Vance and Ertel at the US Embassy, U.S. officials imprisoned them and refused to grant them habeas corpus petitions.
The plaintiffs allege that once they were in custody at a U.S. military base, officials detained these two American citizens as “persons of interest” by invoking authority Rumsfeld had previously granted. Vance was detained for three months and Ertel was detained for over a month without charges and forced to live in extremely unsanitary conditions. During this time, the plaintiffs claim that U.S. officials used tortuous interrogation techniques to attempt to solicit confessions. Some of these techniques included the use of solitary confinement, sleep deprivation, exposure to extreme cold and loud music, and other similarly cruel tactics.
Eventually, both American citizens were released without charges and allowed to return to the U.S. On December 18, 2006, plaintiffs initiated this lawsuit against Rumsfeld for authorizing the alleged constitutional violations they endured during their detention.
For more coverage, see Business Week, the Wall Street Journal, and the Huffington Post.
Prepared by International Justice Project Intern Daniel Cousineau.
Thursday, March 4, 2010
IN THE NEWS: Supreme Court Hears Arguments in Samantar Case
The Supreme Court heard arguments yesterday regarding whether former government officials who commit human rights violations should enjoy immunity under the Foreign Sovereign Immunities Act (FSIA).
The petitioner in the case, Mohamed Ali Samantar, served as Vice President, Minister of Defense, and Prime Minister under General Siad Barre in Somalia during a period of intense conflict in the region. Under the command of Samantar, who is now living just outside of Washington, DC, the Somali Armed Forces committed numerous atrocities against Somali citizens. (For more background on Mr. Samantar and the cases leading to the Supreme Court, see our previous post.)
Yesterday’s arguments before the Supreme Court addressed (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.
In non-legal terms: We don’t allow people to sue foreign governments because that would be a political mess... but what about individual government officials? Who can be held accountable for wrongs they committed and who can use a government position as a reason not to participate in a lawsuit?
Samantar’s lawyers argued that individuals who acted in the official capacity of a foreign government should be protected by FSIA (and thus not be subject to a lawsuit) because “such suits are the equivalent of a suit against the state directly.” Samantar’s attorney argued that while the Torture Victims Protection Act (TVPA) allows torture survivors and their families to bring claims against those who violated their human rights, that statute must be interpreted with existing immunity principles. In other words, FSIA should trump the TVPA. Samantar’s attorneys argue that if there is no explicit exception from Congress or waiver of immunity by the foreign state where a potential defendant is or was an official, no one should be able to hold that person accountable for actions taken in his or her official capacity. Samantar’s lawyers argued that the legislative history shows that the FSIA was intended to codify the common law and international law understandings of foreign governmental immunity and there is no mention of individuals because there was no dispute that the law would apply to individuals.
Attorneys for the Somalis who suffered under the Barre regime argued that the silence of the law shows Congress’ intent not to protect individuals from suit. The attorneys also noted that the TVPA was passed after FSIA and specifically gives torture victims and their families access to U.S. courts. The TVPA, they argued, imposed personal liability on individuals, including those who were acting with actual or apparent authority of the foreign state. Furthermore, if every act of a governmental official amounted to an act of the state, the cause of action under the TVPA would not exist. So the question becomes: can you torture someone and then avoid being held accountable by claiming you were acting on behalf of a foreign government when you did so?
The Deputy Solicitor General argued the Court should allow some lawsuits against individuals, while allowing the U.S. State Department to weigh in on immunity for such individuals.
Nina Totenberg gives a sneak peak at the arguments prior to arguments in Court today.
SCOTUSBlog has short podcasts of attorneys from both sides explaining their arguments.
SCOTUSBlog analysis of the arguments.
Transcript of yesterday’s argument.
Prepared with assistance from IJP Intern Christiaan Segura.
The petitioner in the case, Mohamed Ali Samantar, served as Vice President, Minister of Defense, and Prime Minister under General Siad Barre in Somalia during a period of intense conflict in the region. Under the command of Samantar, who is now living just outside of Washington, DC, the Somali Armed Forces committed numerous atrocities against Somali citizens. (For more background on Mr. Samantar and the cases leading to the Supreme Court, see our previous post.)
Yesterday’s arguments before the Supreme Court addressed (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.
In non-legal terms: We don’t allow people to sue foreign governments because that would be a political mess... but what about individual government officials? Who can be held accountable for wrongs they committed and who can use a government position as a reason not to participate in a lawsuit?
Samantar’s lawyers argued that individuals who acted in the official capacity of a foreign government should be protected by FSIA (and thus not be subject to a lawsuit) because “such suits are the equivalent of a suit against the state directly.” Samantar’s attorney argued that while the Torture Victims Protection Act (TVPA) allows torture survivors and their families to bring claims against those who violated their human rights, that statute must be interpreted with existing immunity principles. In other words, FSIA should trump the TVPA. Samantar’s attorneys argue that if there is no explicit exception from Congress or waiver of immunity by the foreign state where a potential defendant is or was an official, no one should be able to hold that person accountable for actions taken in his or her official capacity. Samantar’s lawyers argued that the legislative history shows that the FSIA was intended to codify the common law and international law understandings of foreign governmental immunity and there is no mention of individuals because there was no dispute that the law would apply to individuals.
Attorneys for the Somalis who suffered under the Barre regime argued that the silence of the law shows Congress’ intent not to protect individuals from suit. The attorneys also noted that the TVPA was passed after FSIA and specifically gives torture victims and their families access to U.S. courts. The TVPA, they argued, imposed personal liability on individuals, including those who were acting with actual or apparent authority of the foreign state. Furthermore, if every act of a governmental official amounted to an act of the state, the cause of action under the TVPA would not exist. So the question becomes: can you torture someone and then avoid being held accountable by claiming you were acting on behalf of a foreign government when you did so?
The Deputy Solicitor General argued the Court should allow some lawsuits against individuals, while allowing the U.S. State Department to weigh in on immunity for such individuals.
Nina Totenberg gives a sneak peak at the arguments prior to arguments in Court today.
SCOTUSBlog has short podcasts of attorneys from both sides explaining their arguments.
SCOTUSBlog analysis of the arguments.
Transcript of yesterday’s argument.
Prepared with assistance from IJP Intern Christiaan Segura.
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