Welcome to the online edition of The Bridge, a newsletter published by the International Law Society at Brooklyn Law School! Here you will find Brooklyn Law students writing on various topics of international law, such as human rights concerns in Burma, or child prostitution in Costa Rica.
We also like to highlight law students who have been successful in working abroad, whether it be the American embassy in Beijing or the International Criminal Tribunal in Rwanda.
Feel free to browse around and enjoy. If you have any questions or comments, please contact the editors at ilsthebridge@gmail.com.
— Written by Julie Geng '13, Editor in Chief
Saturday, January 29, 2011
Tips on Getting International Law Internships
We sat down with Steve Gordon, Brooklyn Law School’s Associate Director of Career Services, to discuss how law students can find meaningful work abroad in international law. The key to landing your dream job is to start early—some deadlines may be as early as mid-fall—and keep an open mind, he said.
• Start your search by stopping by the Career Services Office. Be sure to pick up “The Resource Guide to International Law” and “Selected Opportunities in International Law” handouts before you leave!
• Make sure you search for a position with a focus on international law—just because the job is abroad doesn’t mean it will involve international law.
• Highlight any international experience on your resume, including study abroad, teaching English overseas, Peace Corps or military experience.
• If your resume is lacking, try to parlay your local experience into international work. For example, if you’re working at a financial institution, try to get involved in international transactions. Always look for the international angle.
• Most internships are unpaid, so take time to research the different ways you can help fund your international law internship, such as the BLS International Human Rights Fellowship.
• Have an open mind! International law is a broad field, and there are many routes you can take within the profession.
• Most importantly, start early! Securing a visa and completing paperwork can be a lengthy process.
Can’t go abroad, but still want to snag an international law internship? Gordon says there are still plenty of great international law opportunities in the U.S., especially with the federal government in Washington D.C.. For a comprehensive list of government opportunities, check out:
• The University of Arizona Government Summer and Honors Handbook and The University of Arizona Public Policy programs Handbook. Your career advisor can provide you with the password.
Other online resources:
• Use Martindale-Hubbell to research law firms with offices abroad.
— Written by assistant editors Nicolette Lotrionte ’13 and Elizabeth McKenzie ’13
A version of this article appeared in print in the December 2010 issue of the Bridge.
Burma or Myanmar: What’s in a name?
One of the first issues one notices when becoming familiar with the situation in Burma is the fact that the country’s official name is cited as Myanmar. So why the two names? In fact, both names have historically been used in the Burmese language, with “Burma” being the more colloquial version and “Myanmar” being more formal. The country was called Burma under British rule and that official name was incorporated in the 1947 independence constitution. The short-lived Burmese democracy apparently saw no reason to abandon a name commonly used by its citizens. Neither did the military junta, until 1989.
That year, shortly after a major political uprising and subsequent brutal crackdown, the generals who run the country changed its official name to “the Union of Myanmar.” This rebranding has been resisted by pro-democracy advocates who see it as an effort the military to control the narrative of the country. The name Burma therefore continues to be used by opponents of the military regime and, in solidarity, by many foreign governments and media outlets.
On Oct. 21, as part of their latest image improvement campaign tied to the recent election, the junta once again changed the name of the country, along with the flag and national anthem. The new official name is “The Republic of the Union of Myanmar.” It appears unlikely, however, that this latest appellation will gain international acceptance; shortly after the election a number of foreign leaders, including President Obama, made a point of referring to the country as Burma when addressing widespread electoral fraud.
—Written by Eben Saling ’12
A version of this article appeared in print in the December 2010 issue of the Bridge.
That year, shortly after a major political uprising and subsequent brutal crackdown, the generals who run the country changed its official name to “the Union of Myanmar.” This rebranding has been resisted by pro-democracy advocates who see it as an effort the military to control the narrative of the country. The name Burma therefore continues to be used by opponents of the military regime and, in solidarity, by many foreign governments and media outlets.
On Oct. 21, as part of their latest image improvement campaign tied to the recent election, the junta once again changed the name of the country, along with the flag and national anthem. The new official name is “The Republic of the Union of Myanmar.” It appears unlikely, however, that this latest appellation will gain international acceptance; shortly after the election a number of foreign leaders, including President Obama, made a point of referring to the country as Burma when addressing widespread electoral fraud.
—Written by Eben Saling ’12
A version of this article appeared in print in the December 2010 issue of the Bridge.
Update from the Human Rights Committee
The primary goals of the ILS Human Rights Committee this fall was to encourage more substantive discussion on current topics in the international human rights realm and participate in activities related to those issues. In order to do so, the committee implemented several mechanisms to facilitate dialogue concerning the major interests of committee members during its bi-weekly meetings, including: international criminal law, human trafficking, labor conditions, immigration/refugee law, and issues concerning women, gender, and children. Many of these topics will also be touched on in the spring semester.
The theme of the first several meetings was international justice, and we asked committee members to read Judge Richard Goldstone’s “The Future of International Criminal Justice – Evolving Accountability from Nuremberg to the International Criminal Court,” which was presented at a Penn State Law Symposium. Goldstone was the chief prosecutor during the early days of the ICTY and hence the article gives a sweeping look at international justice in the last 60 years, touching on Nuremberg, the Tokyo Trials, the formation of the ICTY and ICTR, and creation of the ICC through the ratification and implementation of the Rome Treaty. Members shared their experience working with various NGOs, tribunals, and other human rights organizations, as well as presented their opinions on whether they agreed with Goldstone’s premises of the progress of international justice. The committee also organized a film outing and discussed impressions of Nuremberg, the Schulberg/Waletzky restoration of the historic 1946 U.S. documentary. The NYC Film Forum’s screening marked the first time the documentary’s remarkable footage—from the Nuremberg trials as well as Allied Force’s liberation of the concentration camps—had been shown in the United States.
In order to foster communication outside of its meetings, the committee also created its own blog entitled “BLS Human Rights Committee” at http://blshumanrights.blogspot.com to 1) promote relevant events related to the law and human rights taking place at BLS and in the greater NYC area; 2) circulate articles/reports/websites that are of interest; and 3) provide a discussion forum on these topics.
The current focus of the committee is the planning of events for next spring. Already there are several ideas in the works, including roundtable discussions on the 2010 Senate immigration reform bill and Universal Periodic Review (UPR) process of domestic human rights implementation as well as a potential panel focusing on international justice. Because the committee was able to accomplish a variety of undertakings during this fall semester, it is now in a position to achieve even more this coming spring. Please be on the lookout and don’t forget to visit the new blog!
— Written by Laura A. Gretz and Brigitte Hamadey, Co-Chairs of the ILS Human Rights Committee
A version of this article appeared in print in the December 2010 issue of the Bridge.
The theme of the first several meetings was international justice, and we asked committee members to read Judge Richard Goldstone’s “The Future of International Criminal Justice – Evolving Accountability from Nuremberg to the International Criminal Court,” which was presented at a Penn State Law Symposium. Goldstone was the chief prosecutor during the early days of the ICTY and hence the article gives a sweeping look at international justice in the last 60 years, touching on Nuremberg, the Tokyo Trials, the formation of the ICTY and ICTR, and creation of the ICC through the ratification and implementation of the Rome Treaty. Members shared their experience working with various NGOs, tribunals, and other human rights organizations, as well as presented their opinions on whether they agreed with Goldstone’s premises of the progress of international justice. The committee also organized a film outing and discussed impressions of Nuremberg, the Schulberg/Waletzky restoration of the historic 1946 U.S. documentary. The NYC Film Forum’s screening marked the first time the documentary’s remarkable footage—from the Nuremberg trials as well as Allied Force’s liberation of the concentration camps—had been shown in the United States.
In order to foster communication outside of its meetings, the committee also created its own blog entitled “BLS Human Rights Committee” at http://blshumanrights.blogspot.com to 1) promote relevant events related to the law and human rights taking place at BLS and in the greater NYC area; 2) circulate articles/reports/websites that are of interest; and 3) provide a discussion forum on these topics.
The current focus of the committee is the planning of events for next spring. Already there are several ideas in the works, including roundtable discussions on the 2010 Senate immigration reform bill and Universal Periodic Review (UPR) process of domestic human rights implementation as well as a potential panel focusing on international justice. Because the committee was able to accomplish a variety of undertakings during this fall semester, it is now in a position to achieve even more this coming spring. Please be on the lookout and don’t forget to visit the new blog!
— Written by Laura A. Gretz and Brigitte Hamadey, Co-Chairs of the ILS Human Rights Committee
A version of this article appeared in print in the December 2010 issue of the Bridge.
Human Rights Abuses in Afghanistan Rooted in Political, Religious Culture
By Lauren Maccarone '11
Rarely a day goes by that we don’t hear about the vast number of human rights abuses occurring in Afghanistan. Advocates, both on the ground and here in the United States, are working tirelessly to gather information on the seemingly endless abuses and to report them in the media. Sadly, this is the only tactic available under the current circumstances.
Human rights abuses in Afghanistan are extremely difficult to overcome because they are deeply rooted in the country’s political and religious culture. Taliban rulers perpetrate much of the violence. Despite the U.S. and NATO military forces’ efforts to remove these leaders, they continue to control many of the Afghan territories and to obtain high-level governmental positions. Civilians are responsible for the remaining abuses. Individuals often torture their own families and neighbors as punishment for non-compliance with notoriously rigid Sharia customs. These customs, like Taliban rulers, seem to be woven into Afghanistan’s history in a way that cannot be undone.
But what if human rights advocates had the opportunity to lessen the influence of Sharia extremism and Taliban rule? The Afghan transition movement may give them the chance they have been waiting for.
The current plan is for NATO to orchestrate the transition by systematically replacing its own forces with trained Afghan forces, while the U.S. and Afghan governments negotiate reconciliation with the Taliban.
This reconciliation entails the reintegration of Taliban leaders into Afghan society. The process will require detailed discussions on land ownership and control, governmental and military leadership and the many laws that are implicated. One can already predict proposals for land cessation, for constitutional amendments, and for the reinstatement or election of new political officials and judges. In short, the stage is set for a total makeover from the bottom up.
The transition will undoubtedly produce a new way of life for Afghan civilians. The fear is that those running the show will miss out on opportunities to make the human rights improvements that Afghans deserve. Will NATO or the U.S. ask that there be new legislation implemented to protect women’s rights? Will they create a vetting process to ensure that Taliban extremists are not given leadership positions in their newly formed society?
On the contrary, these issues are often swept to the wayside for the sake of a peaceful agreement. Human rights advocates must insert themselves into the transition discussions on behalf of civilians to ensure that the latter’s interests are represented.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Rarely a day goes by that we don’t hear about the vast number of human rights abuses occurring in Afghanistan. Advocates, both on the ground and here in the United States, are working tirelessly to gather information on the seemingly endless abuses and to report them in the media. Sadly, this is the only tactic available under the current circumstances.
Human rights abuses in Afghanistan are extremely difficult to overcome because they are deeply rooted in the country’s political and religious culture. Taliban rulers perpetrate much of the violence. Despite the U.S. and NATO military forces’ efforts to remove these leaders, they continue to control many of the Afghan territories and to obtain high-level governmental positions. Civilians are responsible for the remaining abuses. Individuals often torture their own families and neighbors as punishment for non-compliance with notoriously rigid Sharia customs. These customs, like Taliban rulers, seem to be woven into Afghanistan’s history in a way that cannot be undone.
But what if human rights advocates had the opportunity to lessen the influence of Sharia extremism and Taliban rule? The Afghan transition movement may give them the chance they have been waiting for.
The current plan is for NATO to orchestrate the transition by systematically replacing its own forces with trained Afghan forces, while the U.S. and Afghan governments negotiate reconciliation with the Taliban.
This reconciliation entails the reintegration of Taliban leaders into Afghan society. The process will require detailed discussions on land ownership and control, governmental and military leadership and the many laws that are implicated. One can already predict proposals for land cessation, for constitutional amendments, and for the reinstatement or election of new political officials and judges. In short, the stage is set for a total makeover from the bottom up.
The transition will undoubtedly produce a new way of life for Afghan civilians. The fear is that those running the show will miss out on opportunities to make the human rights improvements that Afghans deserve. Will NATO or the U.S. ask that there be new legislation implemented to protect women’s rights? Will they create a vetting process to ensure that Taliban extremists are not given leadership positions in their newly formed society?
On the contrary, these issues are often swept to the wayside for the sake of a peaceful agreement. Human rights advocates must insert themselves into the transition discussions on behalf of civilians to ensure that the latter’s interests are represented.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Interview with Kyaw Thein Kha, Irrawaddy Reporter in Burma
By Brigitte Hamadey '12
On Nov. 13, Ms. Aung San Suu Kyi, Burma’s pro-democracy leader, was released after seven years of isolation in her lakeside home. The military government has kept her confined under house arrest for 15 of the past 20 years. A few days after her recent release, Suu Kyi filed papers with the country’s High Court asking to have her party, the National League for Democracy, reinstated. Only time will tell what type of impact her new presence will have in the country, but, in the meantime, I had the rare opportunity to ask Mr. Kyaw Thein Kha, a reporter for the Irrawaddy Online Magazine, a few questions regarding these recent developments:
1) What are the Burmese community’s sentiments in response to Ms. Aung San Suu Kyi’s release?
Burmese people who have been in hunger of human rights and democracy for decades see that Aung San Suu Kyi’s release is good for the Burmese military regime to start the national reconciliation process by holding tri-talks between Aung San Suu Kyi, the army leaders and the ethnic leaders. But, we wonder if the stubborn military leaders would want to do that.
2) What factors do you believe led to her release?
I believe that the military leader Senior General Than Shwe released Suu Kyi because of the following possible points:
(1) Than Shwe might think that Suu Kyi will not be able to intervene in the election that was held on 7th November 2010 prior to Suu Kyi’s release on 13th November 2010.
(2) On the other side, the UN, U.S., E.U. and ASEAN had reportedly called on the military regime to release Suu Kyi from the house arrest.
(3) The release of Suu Kyi will help the military leaders to show their faces bravely to the international community in dignity. (But, we still have over 2,000 political prisoners that need to be released unconditionally.)
(4) Although Than Shwe knows that the release of Suu Kyi will change the fear of the public into courage to fight against them (military group), he decided to release her because of the three conditions mentioned above.
3) What significance does her release mean for the future of Burma?
Her release leads to national reconciliation between Burmese military regime and ethnic groups, including ethnic armed groups that didn’t accept the regime’s Border Guard Force (BGF) plan.
4) How likely is it that the National League for Democracy (NLD) will gain official recognition in Burma?
On [Nov. 18], NLD’s lawyers went to the supreme court trial in Nay Pyidaw regarding to official recognition of party’s existence in the country, but no result has been announced by the court.
5) In the past, Ms. Suu Kyi has been released and then detained again. Do you believe that her freedom will last?
That’s the point we (all of Suu Kyi’s supporters) are really concerned about at this moment. It’s unpredictable what the military junta will do. The government-supported thugs and other bad street [persons] can harm her anytime. We all have learned about that from Depayin assassination attempt on Suu Kyi in May 30, 2003.
6) Other general reactions or thoughts on this issue?
We believe that only Suu Kyi is a true leader who can solve the problems of Burma, such as human rights abuses across the country by the military regime and conflicts between ethnic armed groups and military groups. So, tri-talks are really needed to lead the national reconciliation. On [Nov. 14], one day after she [was] released, Suu Kyi said that national reconciliation is [the] priority among what she has to do after [her release].
Kyaw Thein Kha is a Burmese reporter for the Irrawaddy Online Magazine and is based in Thailand. He has a background in economics and engineering and has served as a Burmese/English translator, including for Al Jazeera. Thein Kha will be studying Documentary Film Making at the New York Film Academy beginning in 2011.
On Nov. 13, Ms. Aung San Suu Kyi, Burma’s pro-democracy leader, was released after seven years of isolation in her lakeside home. The military government has kept her confined under house arrest for 15 of the past 20 years. A few days after her recent release, Suu Kyi filed papers with the country’s High Court asking to have her party, the National League for Democracy, reinstated. Only time will tell what type of impact her new presence will have in the country, but, in the meantime, I had the rare opportunity to ask Mr. Kyaw Thein Kha, a reporter for the Irrawaddy Online Magazine, a few questions regarding these recent developments:
1) What are the Burmese community’s sentiments in response to Ms. Aung San Suu Kyi’s release?
Burmese people who have been in hunger of human rights and democracy for decades see that Aung San Suu Kyi’s release is good for the Burmese military regime to start the national reconciliation process by holding tri-talks between Aung San Suu Kyi, the army leaders and the ethnic leaders. But, we wonder if the stubborn military leaders would want to do that.
2) What factors do you believe led to her release?
I believe that the military leader Senior General Than Shwe released Suu Kyi because of the following possible points:
(1) Than Shwe might think that Suu Kyi will not be able to intervene in the election that was held on 7th November 2010 prior to Suu Kyi’s release on 13th November 2010.
(2) On the other side, the UN, U.S., E.U. and ASEAN had reportedly called on the military regime to release Suu Kyi from the house arrest.
(3) The release of Suu Kyi will help the military leaders to show their faces bravely to the international community in dignity. (But, we still have over 2,000 political prisoners that need to be released unconditionally.)
(4) Although Than Shwe knows that the release of Suu Kyi will change the fear of the public into courage to fight against them (military group), he decided to release her because of the three conditions mentioned above.
3) What significance does her release mean for the future of Burma?
Her release leads to national reconciliation between Burmese military regime and ethnic groups, including ethnic armed groups that didn’t accept the regime’s Border Guard Force (BGF) plan.
4) How likely is it that the National League for Democracy (NLD) will gain official recognition in Burma?
On [Nov. 18], NLD’s lawyers went to the supreme court trial in Nay Pyidaw regarding to official recognition of party’s existence in the country, but no result has been announced by the court.
5) In the past, Ms. Suu Kyi has been released and then detained again. Do you believe that her freedom will last?
That’s the point we (all of Suu Kyi’s supporters) are really concerned about at this moment. It’s unpredictable what the military junta will do. The government-supported thugs and other bad street [persons] can harm her anytime. We all have learned about that from Depayin assassination attempt on Suu Kyi in May 30, 2003.
6) Other general reactions or thoughts on this issue?
We believe that only Suu Kyi is a true leader who can solve the problems of Burma, such as human rights abuses across the country by the military regime and conflicts between ethnic armed groups and military groups. So, tri-talks are really needed to lead the national reconciliation. On [Nov. 14], one day after she [was] released, Suu Kyi said that national reconciliation is [the] priority among what she has to do after [her release].
Kyaw Thein Kha is a Burmese reporter for the Irrawaddy Online Magazine and is based in Thailand. He has a background in economics and engineering and has served as a Burmese/English translator, including for Al Jazeera. Thein Kha will be studying Documentary Film Making at the New York Film Academy beginning in 2011.
A version of this article appeared in print in the December 2010 issue of the Bridge.
The Failure of International Law in Latin America
By Catherine Frizell '12
I was in San José, Costa Rica for about three minutes before I was completely lost. A bemused local later told me that the city government had paid to have the signs ripped down a few years back, in anticipation of new ones. The signage budget item failed to gain funding, so alas, San José has no street signs—and with dim street lamps, the city is a labyrinth for tourists at midnight. With their travel lust rapidly fading and their panic setting in, my three companions blurted out halfhearted directions as I drove up the calles and down the avenidas surrounding the Centro Mercado. I slowed down when a pool of red light broke the monotony of gray nighttime tones. From afar, it looked as though five or six women were perched outside of a party, perhaps smoking cigarettes. As the car drew nearer, two of them disappeared into a nearby house, while the four others remained. The women weren’t women; they were girls—probably about 13 or 14 years old, dressed in short skirts, high heels, painted with dark lipstick. There was no party—I looked to my friends for verification, to confirm that what I was seeing was real. Their eyes were as wide as mine were—these little girls were prostitutes.
The international legal community responded to the problem of child trafficking and prostitution with the near-universal endorsement and ratification of the Convention on the Rights of the Child in 1990. With 191 participatory nations, the CRC is the most widely ratified human rights treaty in history. It is designed to set out the “rights that must be realized for children to develop their full potential.” At the time of its signing, it was praised as the most thorough and all-inclusive of all human rights treaties. Indeed, the CRC set out to protect children from abduction, sale and trafficking, from any other form of exploitation, and from cruel and inhumane treatment. In fact, Article 19 specifically protects against offenses of child prostitution, while Article 34 explicitly protects children from sexual abuse and sexual exploitation.
The international law response did not stop with the CRC. Since the CRC does not enable the United Nations to arrest child sex trafficking offenders, the UN endorsed the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, a supplement to the UN Convention Against Transnational Organized Crime. In 2002, the UN Committee on the Rights of the Child issued an optional protocol in the CRC which signatory nations had the option of ratifying—The Optional Protocol on the sale of children, child prostitution and child pornography. Additionally, the UN adopted the 2004 version of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially women and children, which sought to standardize the international approach to the establishment of domestic criminal offenses and prosecuting trafficking in persons cases. Notably, the protocol is the first global legally binding instrument with an agreed-upon definition for human trafficking.
Despite collaborative international efforts, child prostitution and trafficking remain a serious problem in Latin America. There, an estimated 500,000 children work as sex workers, while there are an estimated 3 million children working as sex workers worldwide. In Costa Rica, sex tourism has flourished. The Costa Rican government estimates that 5 percent of the one million Westerners traveling to Costa Rica annually are pedophile sex tourists who have targeted Costa Rican girls and boys for sexual abuse. In recent years, there has been an uptick in Costa Rican sex tourism after recent sex tourism crackdowns in Asia. The little girls I saw working as sex workers in San José are not alone. Approximately 5,000 children in San José, Costa Rica live and work as prostitutes.
Economic and political upheaval in Latin America have created an environment where child exploitation thrives. The prostitution rings are typically organized involving the complicity of nightclubs, motels, hotels, taxicab drivers—and parents who view their children as a means of making an income. Often parents sell their children, rationalizing that the children may go on to work as a domestic laborer for a wealthy family, who can provide a better life for them. Other families send their children directly into prostitution if there is no other “legitimate” alternative work. Sometimes children voluntarily engage in prostitution for personal money. They may live on the street, or may be self-employed or work in gangs, forced to provide for themselves economically. This is especially true for girls and women, who are not afforded the same educational and economic opportunities available to male counterparts. As the economy worsens, girls and women become more financially vulnerable, and more likely to become financially dependent on men.
Despite the lack of funding and difficulty in enforcement, in 1998, both governmental and nongovernmental organizations developed another body in order to curtail the influx of sex tourism in Costa Rica: the National Action Plan against the Commercial Sexual Exploitation of Children (NAPCSEC). The NAPCSEC seeks to monitor child exploitation and raise awareness, but its framework, void of timelines, lacks the sense of urgency needed to eradicate the problem of child exploitation. However, it did play a role in overhauling the Costa Rican criminal code. It was not until 2002 that those who sexually exploited children could be prosecuted at all. In fact, until that time, the judiciary would drop charges of ‘corruption of minors’ when the accused adult proved that another person had already had sex with the child, reasoning that the child was already corrupt.
Latin American customary law also acts as a roadblock to eradicating child prostitution and sex tourism. While the CRC established the definition of a child as any human being below the age of 18, Latin American countries have yet to reach consensus regarding the age of consent. Even though Latin American countries agree that child prostitution and child sex tourism are immoral practices that demand an international response, the age of consent differs from country to country, and state to state, ranging from ages 13 to 18. Not only do different age of consent laws endanger girls’ well-being, they also make domestic enforcement trickier. The CRC simply set the preferred age of consent at 18, but this suggestion does not preclude other countries from establishing a lower standard. Some scholars argue that far-reaching extraterritorial legislation that aims at prosecuting American citizens who engage in child exploitation with a minor in another country would go beyond the boundaries of the Constitution and interfere with international relationships. On the other hand, some argue that aggressively prosecuting Americans who feed the demand for the Latin American child sexploitation and prostitution industry would be in the best interest of Latin American children, and should be pursued regardless of legal and political repercussions.
While prosecuting Americans for exploiting Latin American children and providing the demand that the industry thrives might seem like the right thing to do, it would not actually ensure Latin American children have more rights. Under the human rights framework adopted by the CRC, judicial analysis does not necessarily consider the “best interest of the child” when prosecuting offenders in their own country. Though Article 3 of the CRC sets forth that the “best interests of the child” should be the primary consideration in all matters affecting children, the human rights framework treats children as independent of adults. At least one scholar cites this as a contributing factor to CRC’s failure: domestic courts may be developing jurisprudence that does not ensure children’s rights. Specifically, a human rights framework treats children as adults, overlooking that children need to be protected by adults. Jurisprudence that truly uses a “best interest of the child analysis” should hold interested adults legally obligated for the protection of children and their best interests within the signatory nation.
Clearly, the international community needs to take further action to eradicate sexual exploitation of Latin American children. Though the human rights approach has successfully established child trafficking as an international crime, Latin American courts may need use a different framework in how to incorporate the “best interest of the child” standard in their jurisprudence. Since recent policies have been successful in eradicating child prostitution in Asia, the international community should employ similar tactics in its relations with Latin America. In addition, policies alleviating the plight of the poor, and supporting education and gender equality will allow girls and young women opportunities to support themselves and their families by working “legitimate” jobs.
Twenty years ago, the drafters of the CRC sought to develop a document delineating the rights that must be realized for children to develop their full potential. However, the international community has failed to provide Latin American courts with adequate guidance as to how the “best interest of the child” standard should be interpreted. In neglecting to do so, the international community is effectively messaging that the children engaging in prostitution have reached their apex. The lackluster approach to enforcing the CRC and subsequent agreements disregards the spirit of the “best interest of the child” standard set forth in Article 3 of the CRC, and leaves the children of San José reflective of the streets they walk on—nameless and forgotten.
I was in San José, Costa Rica for about three minutes before I was completely lost. A bemused local later told me that the city government had paid to have the signs ripped down a few years back, in anticipation of new ones. The signage budget item failed to gain funding, so alas, San José has no street signs—and with dim street lamps, the city is a labyrinth for tourists at midnight. With their travel lust rapidly fading and their panic setting in, my three companions blurted out halfhearted directions as I drove up the calles and down the avenidas surrounding the Centro Mercado. I slowed down when a pool of red light broke the monotony of gray nighttime tones. From afar, it looked as though five or six women were perched outside of a party, perhaps smoking cigarettes. As the car drew nearer, two of them disappeared into a nearby house, while the four others remained. The women weren’t women; they were girls—probably about 13 or 14 years old, dressed in short skirts, high heels, painted with dark lipstick. There was no party—I looked to my friends for verification, to confirm that what I was seeing was real. Their eyes were as wide as mine were—these little girls were prostitutes.
The international legal community responded to the problem of child trafficking and prostitution with the near-universal endorsement and ratification of the Convention on the Rights of the Child in 1990. With 191 participatory nations, the CRC is the most widely ratified human rights treaty in history. It is designed to set out the “rights that must be realized for children to develop their full potential.” At the time of its signing, it was praised as the most thorough and all-inclusive of all human rights treaties. Indeed, the CRC set out to protect children from abduction, sale and trafficking, from any other form of exploitation, and from cruel and inhumane treatment. In fact, Article 19 specifically protects against offenses of child prostitution, while Article 34 explicitly protects children from sexual abuse and sexual exploitation.
The international law response did not stop with the CRC. Since the CRC does not enable the United Nations to arrest child sex trafficking offenders, the UN endorsed the 2000 UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, a supplement to the UN Convention Against Transnational Organized Crime. In 2002, the UN Committee on the Rights of the Child issued an optional protocol in the CRC which signatory nations had the option of ratifying—The Optional Protocol on the sale of children, child prostitution and child pornography. Additionally, the UN adopted the 2004 version of the Protocol to Prevent, Suppress, and Punish Trafficking in Persons, especially women and children, which sought to standardize the international approach to the establishment of domestic criminal offenses and prosecuting trafficking in persons cases. Notably, the protocol is the first global legally binding instrument with an agreed-upon definition for human trafficking.
Despite collaborative international efforts, child prostitution and trafficking remain a serious problem in Latin America. There, an estimated 500,000 children work as sex workers, while there are an estimated 3 million children working as sex workers worldwide. In Costa Rica, sex tourism has flourished. The Costa Rican government estimates that 5 percent of the one million Westerners traveling to Costa Rica annually are pedophile sex tourists who have targeted Costa Rican girls and boys for sexual abuse. In recent years, there has been an uptick in Costa Rican sex tourism after recent sex tourism crackdowns in Asia. The little girls I saw working as sex workers in San José are not alone. Approximately 5,000 children in San José, Costa Rica live and work as prostitutes.
Economic and political upheaval in Latin America have created an environment where child exploitation thrives. The prostitution rings are typically organized involving the complicity of nightclubs, motels, hotels, taxicab drivers—and parents who view their children as a means of making an income. Often parents sell their children, rationalizing that the children may go on to work as a domestic laborer for a wealthy family, who can provide a better life for them. Other families send their children directly into prostitution if there is no other “legitimate” alternative work. Sometimes children voluntarily engage in prostitution for personal money. They may live on the street, or may be self-employed or work in gangs, forced to provide for themselves economically. This is especially true for girls and women, who are not afforded the same educational and economic opportunities available to male counterparts. As the economy worsens, girls and women become more financially vulnerable, and more likely to become financially dependent on men.
Despite the lack of funding and difficulty in enforcement, in 1998, both governmental and nongovernmental organizations developed another body in order to curtail the influx of sex tourism in Costa Rica: the National Action Plan against the Commercial Sexual Exploitation of Children (NAPCSEC). The NAPCSEC seeks to monitor child exploitation and raise awareness, but its framework, void of timelines, lacks the sense of urgency needed to eradicate the problem of child exploitation. However, it did play a role in overhauling the Costa Rican criminal code. It was not until 2002 that those who sexually exploited children could be prosecuted at all. In fact, until that time, the judiciary would drop charges of ‘corruption of minors’ when the accused adult proved that another person had already had sex with the child, reasoning that the child was already corrupt.
Latin American customary law also acts as a roadblock to eradicating child prostitution and sex tourism. While the CRC established the definition of a child as any human being below the age of 18, Latin American countries have yet to reach consensus regarding the age of consent. Even though Latin American countries agree that child prostitution and child sex tourism are immoral practices that demand an international response, the age of consent differs from country to country, and state to state, ranging from ages 13 to 18. Not only do different age of consent laws endanger girls’ well-being, they also make domestic enforcement trickier. The CRC simply set the preferred age of consent at 18, but this suggestion does not preclude other countries from establishing a lower standard. Some scholars argue that far-reaching extraterritorial legislation that aims at prosecuting American citizens who engage in child exploitation with a minor in another country would go beyond the boundaries of the Constitution and interfere with international relationships. On the other hand, some argue that aggressively prosecuting Americans who feed the demand for the Latin American child sexploitation and prostitution industry would be in the best interest of Latin American children, and should be pursued regardless of legal and political repercussions.
While prosecuting Americans for exploiting Latin American children and providing the demand that the industry thrives might seem like the right thing to do, it would not actually ensure Latin American children have more rights. Under the human rights framework adopted by the CRC, judicial analysis does not necessarily consider the “best interest of the child” when prosecuting offenders in their own country. Though Article 3 of the CRC sets forth that the “best interests of the child” should be the primary consideration in all matters affecting children, the human rights framework treats children as independent of adults. At least one scholar cites this as a contributing factor to CRC’s failure: domestic courts may be developing jurisprudence that does not ensure children’s rights. Specifically, a human rights framework treats children as adults, overlooking that children need to be protected by adults. Jurisprudence that truly uses a “best interest of the child analysis” should hold interested adults legally obligated for the protection of children and their best interests within the signatory nation.
Clearly, the international community needs to take further action to eradicate sexual exploitation of Latin American children. Though the human rights approach has successfully established child trafficking as an international crime, Latin American courts may need use a different framework in how to incorporate the “best interest of the child” standard in their jurisprudence. Since recent policies have been successful in eradicating child prostitution in Asia, the international community should employ similar tactics in its relations with Latin America. In addition, policies alleviating the plight of the poor, and supporting education and gender equality will allow girls and young women opportunities to support themselves and their families by working “legitimate” jobs.
Twenty years ago, the drafters of the CRC sought to develop a document delineating the rights that must be realized for children to develop their full potential. However, the international community has failed to provide Latin American courts with adequate guidance as to how the “best interest of the child” standard should be interpreted. In neglecting to do so, the international community is effectively messaging that the children engaging in prostitution have reached their apex. The lackluster approach to enforcing the CRC and subsequent agreements disregards the spirit of the “best interest of the child” standard set forth in Article 3 of the CRC, and leaves the children of San José reflective of the streets they walk on—nameless and forgotten.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Refugee Protection and the One-Year Asylum Deadline
By Laura A. Gretz '12
Over the course of this semester, I have been interning with Human Rights first in their Refugee Protection Program as their sole legal intern. What drew me to HRF was the opportunity to learn more about immigration law while simultaneously using my knowledge of Spanish to interview potential asylum candidates. I was interested in interacting more with clients after having no client contact while working this summer in the prosecution office at the UN International Criminal Tribunal for Rwanda in Tanzania.
Unlike BLS’ Safe Harbor Clinic, HRF does not directly represent asylum candidates but performs initial intake interviews to assess the strength of asylum claims through reporting on the candidate’s personal history, fear of return to their home country, and the corresponding country’s conditions. I have written several of these intake reports, and once they are compiled, HRF’s senior counsel decides whether the information warrants assigning the candidate’s claim to one of the firms on HRF’s referral list that provides pro bono assistance to asylum seekers. HRF reasons that abstaining from direct representation of asylum seekers allows it to ultimately help more people as well as engage in more policy advocacy.
One of the policy issues most significant to HRF at present is the one-year deadline associated with asylum application, which requires asylum seekers to file within one year of arriving in the U.S. I attended an HRF briefing on a report written by several of its staff attorneys analyzing and discussing many of the pitfalls associated with this aspect of the asylum law, which has led asylum seekers to increasingly file for “withholding of removal” in place of asylum. “Withholding of removal” originated as an alternative for immigrants with asylum-barring criminal convictions who still had genuine reasons for fearing deportation.
The disadvantage of “withholding” is that recipients are permanently precluded from ever receiving permanent residency or citizenship and cannot leave the U.S. temporarily or they will be denied re-entry. This raises serious equitable concern over the fact that immigrants with no criminal convictions who have failed to meet the one-year deadline—very likely due to post-traumatic stress or simple survival reasons—are forced nonetheless to resort to filing for “withholding.” HRF is optimistic that immigration judges and attorneys are voicing their concern over the disadvantages of the one-year deadline and that its policy advocacy on Capitol Hill will help influence abrogation of the requirement.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Over the course of this semester, I have been interning with Human Rights first in their Refugee Protection Program as their sole legal intern. What drew me to HRF was the opportunity to learn more about immigration law while simultaneously using my knowledge of Spanish to interview potential asylum candidates. I was interested in interacting more with clients after having no client contact while working this summer in the prosecution office at the UN International Criminal Tribunal for Rwanda in Tanzania.
Unlike BLS’ Safe Harbor Clinic, HRF does not directly represent asylum candidates but performs initial intake interviews to assess the strength of asylum claims through reporting on the candidate’s personal history, fear of return to their home country, and the corresponding country’s conditions. I have written several of these intake reports, and once they are compiled, HRF’s senior counsel decides whether the information warrants assigning the candidate’s claim to one of the firms on HRF’s referral list that provides pro bono assistance to asylum seekers. HRF reasons that abstaining from direct representation of asylum seekers allows it to ultimately help more people as well as engage in more policy advocacy.
One of the policy issues most significant to HRF at present is the one-year deadline associated with asylum application, which requires asylum seekers to file within one year of arriving in the U.S. I attended an HRF briefing on a report written by several of its staff attorneys analyzing and discussing many of the pitfalls associated with this aspect of the asylum law, which has led asylum seekers to increasingly file for “withholding of removal” in place of asylum. “Withholding of removal” originated as an alternative for immigrants with asylum-barring criminal convictions who still had genuine reasons for fearing deportation.
The disadvantage of “withholding” is that recipients are permanently precluded from ever receiving permanent residency or citizenship and cannot leave the U.S. temporarily or they will be denied re-entry. This raises serious equitable concern over the fact that immigrants with no criminal convictions who have failed to meet the one-year deadline—very likely due to post-traumatic stress or simple survival reasons—are forced nonetheless to resort to filing for “withholding.” HRF is optimistic that immigration judges and attorneys are voicing their concern over the disadvantages of the one-year deadline and that its policy advocacy on Capitol Hill will help influence abrogation of the requirement.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Election in Burma: Reprieve or Rerun?
By Eben Saling '12
Events in Burma have featured regularly in the news over the last few months. Along with landmark elections, the release of Nobel laureate Aung San Suu Kyi from house arrest has guaranteed heavy coverage. To the casual observer it may appear that the notoriously guarded and oppressive military junta that controls the country has suddenly changed their course. To anyone familiar with the country’s history, skepticism is the more likely response.
The elections of Nov. 7 were Burma’s first in 20 years. The junta, in power since a 1962 coup, has presented the elections as a bold step toward democracy. Many opposition members, international organizations, and foreign governments, however, argue that both the structure and results of the election were rigged to protect military power. In the inaugural parliament, the military-aligned Union Solidarity and Development Party (USDP) controls more than 75 percent of the seats.
Suu Kyi, the leader of the opposition National League for Democracy (NLD) party, has been subject to two decades of near-continuous confinement. Her most recent release from house arrest, on Nov. 13, occurred just before the official results of the vote were known. Widespread and positive public reaction to her freedom has proven that she continues to hold considerable power and moral authority inside Burma, despite the fact that she was barred from standing in the elections. Her role in the political arena, and the military’s reaction to it, are being watched carefully as an indicator of the potential for reform.
These recent developments have provided many with hope that Burma is finally moving away from its long history as a pariah state with one of the worst human rights records in the world. However, the ultimate effect of the elections, and particularly whether they will create any latitude for significant reform, remains to be seen. Suu Kyi has been granted freedom before, only to be placed back into detention as soon as she becomes a political liability to the ruling generals. If the past actions of the junta are any indication, the election and amnesty may prove nothing more than a public relations ploy meant to distract from the continuing human rights crises within the country.
Background
The reality remains that Burma is one of the least developed and most corrupt countries in the world. The ruling military has systematically committed a long list of human rights abuses in its struggle to maintain power including arbitrary arrest and detention, extrajudicial killings, forced labor, recruitment of child soldiers, and torture.
Despite the brutal tactics used by the regime to stifle opposition and consolidate control, Burma remains an inefficiently governed, fragmented state. Although rich in natural resources and arable farmland, it is one of the poorest nations in Asia due in large part to the mismanagement and corruption of the ruling regime. International aid organizations are allowed only limited access to the country, exacerbating the existing food shortages and public health crises. Burma has more annual deaths from malaria than any other Southeast Asian country and has suffered HIV and tuberculosis epidemics worsened by a lack of health services for much of the population.
Conditions are particularly dire in the rural areas of the country, where the majority of the population reside. Many outlying areas are partially controlled by ethnic minority groups who are frequently targeted by the military. Some of these groups manage a degree of autonomy and an uneasy peace with the junta. Others live as internally displaced peoples, on the run from military raids and the threat of forced labor. Hundreds of thousands of refugees have fled into neighboring countries.
In May 2008, Cyclone Nargis struck the southwestern region of the country, killing as many as 200,000 people and destroying homes and vital crops. Always fearful of outside influence, the government blocked most international aid groups from operating inside the country. The military’s own response to the disaster was so ineffective and plagued with graft that some international organizations called on the International Criminal Court to investigate for possible crimes against humanity.
Although the government was apparently unable to provide basic services to citizens who were living without food or shelter, it was eager to continue with a planned constitutional referendum held just days after the disaster. Both the timing and integrity of the referendum were widely criticized, as was the new constitution. As part of the so-called “roadmap to democracy,” it established a new election process and “democratic” parliamentary structure that guarantees the military continued power.
While the junta has made democratic overtures in the past, it has always returned to its practices of political oppression and totalitarian rule. Elections held in 1990 resulted in a landslide victory for the opposition National League for Democracy (NLD) party and were promptly nullified. Many of the Burmese citizens who worked with the NLD during that period now number among the thousands of Burmese political prisoners, or have been forced to flee the country in the years since the elections.
Suu Kyi is one such citizen. The daughter of Aung San, the martyred architect of Burma’s independence from Britain, she led the NLD to its 1990 election victory despite being placed under house arrest in 1989. Awarded the Nobel Peace Prize in 1991 for her “non-violent struggle for democracy and human rights,” Suu Kyi’s detention continued until 1995 when she was released conditionally, with restrictions placed on internal and external travel.
She was arrested again in 2000 for two years and, following a failed assassination attempt in 2003 by government-paid thugs, was placed back into detention until her most recent release. Suu Kyi continues to inspire the Burmese democracy movement despite her harrowing record of detention. Her ordeal serves as a prime example of the military’s duplicitous attempts to lessen international pressure while continuing its totalitarian practices.
Recent Events
Many believe that the latest election and amnesty is yet another episode in this pattern of feigned reform. In recent years, Burma has increased its economic ties with China, Thailand, India, and a number of other states. The lessening of international pressure and economic sanctions could mean a huge influx of investment, benefiting the generals and their allies.
The junta has tried its best to assert the fairness of the recent elections. State-run media such as the New Light of Myanmar and TV Myanmar International provided a range of stories on the elections, from the mundane, “Maj-Gen Tin Ngwe of Ministry of Defence and wife cast votes,” to the misleading “Diplomats, journalists observe casting votes in Haka and Falam.” In reality, the junta refused entry to international election observers and, while there were a few foreign diplomats present (notably, a group from North Korea), they did not provide serve any significant role in monitoring the elections.
Reports from independent Burmese observers, however, indicated widespread voter intimidation. Bribery and other abuses—such as the military taking advantage of advance voting by forcing whole units of soldiers and their families to vote in blocs—were also alleged. This, in addition to the fact that the new constitution guarantees 25 percent of parliamentary seats to military representatives, limits the activities of political opposition groups, and dictates that the president of the country, who is not elected, must be a current or former member of the military.
For these reasons, many civil society groups and political organizations, including Suu Kyi’s, boycotted the elections as part of a larger strategy of actively opposing the regime’s roadmap.
This boycott strategy was roundly supported by the exiled pro-democracy movement according to Jenny Hedstrom, a Swedish consultant currently on the Thai-Burma border who stated, “The exile groups don’t trust the military at all, and strongly believe the election was solely a charade to make the Burmese junta look legitimate in international eyes.”
That charade seems to have failed. Many in the international community, including President Barack Obama and British Prime Minister David Cameron have joined pro-democracy and human rights groups in condemning the elections as a “sham” designed to mislead the international community and add an air of legitimacy to the regime. Groups such as Amnesty International and Human Rights Watch (HRW) have been highly critical of the junta’s roadmap at every turn.
Considering the structure and administration of the elections, the final results announced on Nov. 18 surprised no one. Pro-regime parties won 946 of the 1,154 seats up for election, not counting the 25 percent of seats already guaranteed to the military. Opposition parties won less than 9 percent of the total seats.
During the period between the election and the announcement of the final results, the junta released Suu Kyi from house arrest. Additionally, her youngest son has finally been allowed to visit her, after having been denied a visa to Burma for 10 years. While pro-democracy groups are overjoyed at Suu Kyi’s release, they are also cautious in their optimism, worrying that she will eventually be taken back into custody. Caution does not seem to be the foremost concern of Suu Kyi who, since her release, has continued to speak out for non-violent revolution in Burma, saying “I think of revolution as significant change. I say this because we are in need of significant change,” while criticizing the military’s illusory approach to reform.
What Now?
One change that has taken hold recently in Burma is the foundation of numerous civil society groups working for social reform within the country. Made up of private citizens and businessmen, and sometimes associated with the ruling regime, the groups first became visible as self-help apparatuses after Cyclone Nargis and are now working on a number of domestic issues. Representatives of some groups argue that the recent election, although biased, signifies growing room for civil action.
Mindful of the reality on the ground, and with the hope that they will face fewer restrictions in the post-election environment, several of these groups are prepared to continue testing the boundaries of freedom inside the country. A senior consultant working with a group based in Rangoon posited that “as long as one does not touch direct politics, one is pretty much free to do what one wants, in particular in the fields of education or humanitarian aid.”
The pro-democracy movement is skeptical, however, and continues to place their faith in the international community and international law. They have most recently lobbied United Nations member states to support the UN human rights monitor to Burma, Tomás Quintana, in his call for a commission of inquiry to investigate the widely documented human rights abuses and war crimes committed by the regime. HRW has also been a strong supporter of the commission of inquiry, which could be seen as a possible road to reconciliation between the junta, pro-democracy activists and ethnic minority groups.
These ethnic groups, who maintain control in many border areas, have begun to organize their forces for the possibility of renewed confrontation with the regime. Mindful of the crackdowns that have occurred after past elections, they feel it is necessary to be prepared. There are reports that high-level meetings have taken place in Thailand during the last few weeks concerning strategic cooperation between several of these groups.
Regardless of the strategic intentions behind recent events, the fact remains that there is a long and difficult road to traverse before Burma can celebrate the result of a truly democratic election. Suu Kyi has, since her release, stated a willingness to work with all actors who are prepared to enter a real dialogue about the democratic future of Burma. Short of international imposition or active rebellion, we can only hope that there are actors in the military regime with the same willingness.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Events in Burma have featured regularly in the news over the last few months. Along with landmark elections, the release of Nobel laureate Aung San Suu Kyi from house arrest has guaranteed heavy coverage. To the casual observer it may appear that the notoriously guarded and oppressive military junta that controls the country has suddenly changed their course. To anyone familiar with the country’s history, skepticism is the more likely response.
The elections of Nov. 7 were Burma’s first in 20 years. The junta, in power since a 1962 coup, has presented the elections as a bold step toward democracy. Many opposition members, international organizations, and foreign governments, however, argue that both the structure and results of the election were rigged to protect military power. In the inaugural parliament, the military-aligned Union Solidarity and Development Party (USDP) controls more than 75 percent of the seats.
Suu Kyi, the leader of the opposition National League for Democracy (NLD) party, has been subject to two decades of near-continuous confinement. Her most recent release from house arrest, on Nov. 13, occurred just before the official results of the vote were known. Widespread and positive public reaction to her freedom has proven that she continues to hold considerable power and moral authority inside Burma, despite the fact that she was barred from standing in the elections. Her role in the political arena, and the military’s reaction to it, are being watched carefully as an indicator of the potential for reform.
These recent developments have provided many with hope that Burma is finally moving away from its long history as a pariah state with one of the worst human rights records in the world. However, the ultimate effect of the elections, and particularly whether they will create any latitude for significant reform, remains to be seen. Suu Kyi has been granted freedom before, only to be placed back into detention as soon as she becomes a political liability to the ruling generals. If the past actions of the junta are any indication, the election and amnesty may prove nothing more than a public relations ploy meant to distract from the continuing human rights crises within the country.
Background
The reality remains that Burma is one of the least developed and most corrupt countries in the world. The ruling military has systematically committed a long list of human rights abuses in its struggle to maintain power including arbitrary arrest and detention, extrajudicial killings, forced labor, recruitment of child soldiers, and torture.
Despite the brutal tactics used by the regime to stifle opposition and consolidate control, Burma remains an inefficiently governed, fragmented state. Although rich in natural resources and arable farmland, it is one of the poorest nations in Asia due in large part to the mismanagement and corruption of the ruling regime. International aid organizations are allowed only limited access to the country, exacerbating the existing food shortages and public health crises. Burma has more annual deaths from malaria than any other Southeast Asian country and has suffered HIV and tuberculosis epidemics worsened by a lack of health services for much of the population.
Conditions are particularly dire in the rural areas of the country, where the majority of the population reside. Many outlying areas are partially controlled by ethnic minority groups who are frequently targeted by the military. Some of these groups manage a degree of autonomy and an uneasy peace with the junta. Others live as internally displaced peoples, on the run from military raids and the threat of forced labor. Hundreds of thousands of refugees have fled into neighboring countries.
In May 2008, Cyclone Nargis struck the southwestern region of the country, killing as many as 200,000 people and destroying homes and vital crops. Always fearful of outside influence, the government blocked most international aid groups from operating inside the country. The military’s own response to the disaster was so ineffective and plagued with graft that some international organizations called on the International Criminal Court to investigate for possible crimes against humanity.
Although the government was apparently unable to provide basic services to citizens who were living without food or shelter, it was eager to continue with a planned constitutional referendum held just days after the disaster. Both the timing and integrity of the referendum were widely criticized, as was the new constitution. As part of the so-called “roadmap to democracy,” it established a new election process and “democratic” parliamentary structure that guarantees the military continued power.
While the junta has made democratic overtures in the past, it has always returned to its practices of political oppression and totalitarian rule. Elections held in 1990 resulted in a landslide victory for the opposition National League for Democracy (NLD) party and were promptly nullified. Many of the Burmese citizens who worked with the NLD during that period now number among the thousands of Burmese political prisoners, or have been forced to flee the country in the years since the elections.
Suu Kyi is one such citizen. The daughter of Aung San, the martyred architect of Burma’s independence from Britain, she led the NLD to its 1990 election victory despite being placed under house arrest in 1989. Awarded the Nobel Peace Prize in 1991 for her “non-violent struggle for democracy and human rights,” Suu Kyi’s detention continued until 1995 when she was released conditionally, with restrictions placed on internal and external travel.
She was arrested again in 2000 for two years and, following a failed assassination attempt in 2003 by government-paid thugs, was placed back into detention until her most recent release. Suu Kyi continues to inspire the Burmese democracy movement despite her harrowing record of detention. Her ordeal serves as a prime example of the military’s duplicitous attempts to lessen international pressure while continuing its totalitarian practices.
Recent Events
Many believe that the latest election and amnesty is yet another episode in this pattern of feigned reform. In recent years, Burma has increased its economic ties with China, Thailand, India, and a number of other states. The lessening of international pressure and economic sanctions could mean a huge influx of investment, benefiting the generals and their allies.
The junta has tried its best to assert the fairness of the recent elections. State-run media such as the New Light of Myanmar and TV Myanmar International provided a range of stories on the elections, from the mundane, “Maj-Gen Tin Ngwe of Ministry of Defence and wife cast votes,” to the misleading “Diplomats, journalists observe casting votes in Haka and Falam.” In reality, the junta refused entry to international election observers and, while there were a few foreign diplomats present (notably, a group from North Korea), they did not provide serve any significant role in monitoring the elections.
Reports from independent Burmese observers, however, indicated widespread voter intimidation. Bribery and other abuses—such as the military taking advantage of advance voting by forcing whole units of soldiers and their families to vote in blocs—were also alleged. This, in addition to the fact that the new constitution guarantees 25 percent of parliamentary seats to military representatives, limits the activities of political opposition groups, and dictates that the president of the country, who is not elected, must be a current or former member of the military.
For these reasons, many civil society groups and political organizations, including Suu Kyi’s, boycotted the elections as part of a larger strategy of actively opposing the regime’s roadmap.
This boycott strategy was roundly supported by the exiled pro-democracy movement according to Jenny Hedstrom, a Swedish consultant currently on the Thai-Burma border who stated, “The exile groups don’t trust the military at all, and strongly believe the election was solely a charade to make the Burmese junta look legitimate in international eyes.”
That charade seems to have failed. Many in the international community, including President Barack Obama and British Prime Minister David Cameron have joined pro-democracy and human rights groups in condemning the elections as a “sham” designed to mislead the international community and add an air of legitimacy to the regime. Groups such as Amnesty International and Human Rights Watch (HRW) have been highly critical of the junta’s roadmap at every turn.
Considering the structure and administration of the elections, the final results announced on Nov. 18 surprised no one. Pro-regime parties won 946 of the 1,154 seats up for election, not counting the 25 percent of seats already guaranteed to the military. Opposition parties won less than 9 percent of the total seats.
During the period between the election and the announcement of the final results, the junta released Suu Kyi from house arrest. Additionally, her youngest son has finally been allowed to visit her, after having been denied a visa to Burma for 10 years. While pro-democracy groups are overjoyed at Suu Kyi’s release, they are also cautious in their optimism, worrying that she will eventually be taken back into custody. Caution does not seem to be the foremost concern of Suu Kyi who, since her release, has continued to speak out for non-violent revolution in Burma, saying “I think of revolution as significant change. I say this because we are in need of significant change,” while criticizing the military’s illusory approach to reform.
What Now?
One change that has taken hold recently in Burma is the foundation of numerous civil society groups working for social reform within the country. Made up of private citizens and businessmen, and sometimes associated with the ruling regime, the groups first became visible as self-help apparatuses after Cyclone Nargis and are now working on a number of domestic issues. Representatives of some groups argue that the recent election, although biased, signifies growing room for civil action.
Mindful of the reality on the ground, and with the hope that they will face fewer restrictions in the post-election environment, several of these groups are prepared to continue testing the boundaries of freedom inside the country. A senior consultant working with a group based in Rangoon posited that “as long as one does not touch direct politics, one is pretty much free to do what one wants, in particular in the fields of education or humanitarian aid.”
The pro-democracy movement is skeptical, however, and continues to place their faith in the international community and international law. They have most recently lobbied United Nations member states to support the UN human rights monitor to Burma, Tomás Quintana, in his call for a commission of inquiry to investigate the widely documented human rights abuses and war crimes committed by the regime. HRW has also been a strong supporter of the commission of inquiry, which could be seen as a possible road to reconciliation between the junta, pro-democracy activists and ethnic minority groups.
These ethnic groups, who maintain control in many border areas, have begun to organize their forces for the possibility of renewed confrontation with the regime. Mindful of the crackdowns that have occurred after past elections, they feel it is necessary to be prepared. There are reports that high-level meetings have taken place in Thailand during the last few weeks concerning strategic cooperation between several of these groups.
Regardless of the strategic intentions behind recent events, the fact remains that there is a long and difficult road to traverse before Burma can celebrate the result of a truly democratic election. Suu Kyi has, since her release, stated a willingness to work with all actors who are prepared to enter a real dialogue about the democratic future of Burma. Short of international imposition or active rebellion, we can only hope that there are actors in the military regime with the same willingness.
A version of this article appeared in print in the December 2010 issue of the Bridge.
Evaluating the International Criminal Court
By Lauren Maccarone '11
Many victims of war crimes, from all corners of the world, view the International Criminal Court (ICC) as their only hope of stopping perpetrators and obtaining justice. Most Americans, however, remain ignorant of the existence of the ICC, much less its role in and importance to international justice.
For the last eight months, I have served as a legal intern to the Coalition for the International Criminal Court (CICC). The CICC serves as the uniting force for over 2,000 non-governmental organizations worldwide that support the Court and its goals. During my time there, I researched and drafted memos on various ICC issues and met with legal advisors from CICC constituent member organizations, ICC member states, and the United Nations to discuss those issues. I truly loved every minute of my experience.
By far the most amazing part of the internship was the two weeks that I spent working with the CICC in Kampala, Uganda at the Inaugural ICC Review Conference. Originally scheduled by States Parties (those nations who have signed the ICC’s underlying treaty, known as the Rome Statute) to discuss and pass the “Crime of Aggression,” it ultimately turned into so much more.
First, the conference was attended by far more than the now 111 States Parties. Specifically, ICC officials, prosecutors and staff from other criminal tribunals, high-level UN officials, representatives from non-state parties (such as the United States), academic experts from around the world, and most importantly, war crimes victims, also attended.
Second, the conference was extended an entire week so that those present could engage in a thorough evaluation (dubbed “stocktaking”) of the Court’s work thus far. As a result, the conference not only culminated in a Rome Statute amendment on the “crime of aggression,” but also in a working plan for how the ICC could develop and improve in the future.
The knowledge and experience that I gained from working with these individuals on revolutionary international criminal laws will prove invaluable for my career going forward. I was the most impressed by the overwhelming amount of dedication and enthusiasm shown for the Court. The poorest African nations were alongside the richest of Europe, negotiating into the early hours of the morning on what seemed like impossible compromises. Victims of the Lord’s Resistance Army, the conflict in the Democratic Republic of Congo, and the Darfur genocide risked their lives and spent months of pay to travel to the Conference simply to reiterate the Court’s importance in their lives. I was shocked, and since I am an American, who can blame me?
Unfortunately, few Americans know what the ICC is, let alone support it. This is primarily due to the fact that the U.S. has not yet ratified the Rome Statute and thus, is not an ICC State Party. America’s reluctance to sign the Rome Statute stems from distrust in the Court’s use of universal jurisdiction, which allows any country to prosecute any perpetrator, regardless of his or her nationality, of crimes that are recognized as illegal by all nations under customary international law. For example, the ICC may prosecute any individual who commits the specific crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.
This does not mean, however, the United States supports impunity for these crimes. On the contrary, the U.S. delegation to Kampala was very vocal about its intention to cooperate with the Court in combating them. But is this enough?
The Court, while fragile, is progressing onto the international scene at a rapidly increasing speed and at least 111 countries are already on board. As I observed, academics, UN officials, civil society, and most importantly, the victims of the world’s most heinous crimes all see the Court as a promising future solution. At the very least, it is time for Americans to get more involved. The rest of the world is moving ahead with its support for the Court, with or without us.
Many victims of war crimes, from all corners of the world, view the International Criminal Court (ICC) as their only hope of stopping perpetrators and obtaining justice. Most Americans, however, remain ignorant of the existence of the ICC, much less its role in and importance to international justice.
For the last eight months, I have served as a legal intern to the Coalition for the International Criminal Court (CICC). The CICC serves as the uniting force for over 2,000 non-governmental organizations worldwide that support the Court and its goals. During my time there, I researched and drafted memos on various ICC issues and met with legal advisors from CICC constituent member organizations, ICC member states, and the United Nations to discuss those issues. I truly loved every minute of my experience.
By far the most amazing part of the internship was the two weeks that I spent working with the CICC in Kampala, Uganda at the Inaugural ICC Review Conference. Originally scheduled by States Parties (those nations who have signed the ICC’s underlying treaty, known as the Rome Statute) to discuss and pass the “Crime of Aggression,” it ultimately turned into so much more.
First, the conference was attended by far more than the now 111 States Parties. Specifically, ICC officials, prosecutors and staff from other criminal tribunals, high-level UN officials, representatives from non-state parties (such as the United States), academic experts from around the world, and most importantly, war crimes victims, also attended.
Second, the conference was extended an entire week so that those present could engage in a thorough evaluation (dubbed “stocktaking”) of the Court’s work thus far. As a result, the conference not only culminated in a Rome Statute amendment on the “crime of aggression,” but also in a working plan for how the ICC could develop and improve in the future.
The knowledge and experience that I gained from working with these individuals on revolutionary international criminal laws will prove invaluable for my career going forward. I was the most impressed by the overwhelming amount of dedication and enthusiasm shown for the Court. The poorest African nations were alongside the richest of Europe, negotiating into the early hours of the morning on what seemed like impossible compromises. Victims of the Lord’s Resistance Army, the conflict in the Democratic Republic of Congo, and the Darfur genocide risked their lives and spent months of pay to travel to the Conference simply to reiterate the Court’s importance in their lives. I was shocked, and since I am an American, who can blame me?
Unfortunately, few Americans know what the ICC is, let alone support it. This is primarily due to the fact that the U.S. has not yet ratified the Rome Statute and thus, is not an ICC State Party. America’s reluctance to sign the Rome Statute stems from distrust in the Court’s use of universal jurisdiction, which allows any country to prosecute any perpetrator, regardless of his or her nationality, of crimes that are recognized as illegal by all nations under customary international law. For example, the ICC may prosecute any individual who commits the specific crimes of genocide, crimes against humanity, war crimes, and the crime of aggression.
This does not mean, however, the United States supports impunity for these crimes. On the contrary, the U.S. delegation to Kampala was very vocal about its intention to cooperate with the Court in combating them. But is this enough?
The Court, while fragile, is progressing onto the international scene at a rapidly increasing speed and at least 111 countries are already on board. As I observed, academics, UN officials, civil society, and most importantly, the victims of the world’s most heinous crimes all see the Court as a promising future solution. At the very least, it is time for Americans to get more involved. The rest of the world is moving ahead with its support for the Court, with or without us.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Righting Wrongs: The International Criminal Tribunal for Rwanda
By Hanna Morrill '12
There is no doubt that the International Criminal Tribunal for Rwanda (ICTR) continues to play an important role in the development of international humanitarian law. ICTR, which was established in 1995, was at the beginning of its 16th year when I arrived there at the end of this past May to start my summer internship. I spent two and a half months living and working in Arusha, Tanzania.
Working in Trial Chamber III, I was assigned to the case of Jean-Baptiste Gatete (ICTR-00-61), a single-accused. His trial had been completed at the beginning of the year and we were awaiting the submission of the final briefs from both the prosecution and defense teams. As the only intern on the case, I performed duties that ranged from researching precedent with regard to admissibility of witness testimony post-trial to preparing points for observation while in Rwanda. Site-visits in Rwanda were delayed until July after the submission of briefs, due to the prevalance of discrepancies in witness testimony. The delay prompted both parties to attempt to add more testimony to the case file in order to bolster their arguments.
Much of my time was spent summarizing and determining the credibility of witness testimony. It was quite harrowing to read horrifying descriptions about their family, friends, and neighbors being pursued and slaughtered. It was even harder to then step back and take a critical look at someone’s traumatizing experience to determine whether or not they were telling the truth. But it is not as simple as asking for the truth as to whether they saw a friend killed; it is about whether their testimony changed from the initial prosecution or defense interview to now include charges against the accused. Discrepancy in witness testimony is a significant problem at the ICTR and it is no wonder, after 16 years, memories still fail regardless of how traumatic the experience may have been. Besides unreliable memory, sometimes the reasons they have for testifying change. It is imperative to verify that when a witness testifies that the accused, in this case Gatete, stopped by and incentivized the militia to kill thousands, it was actually Gatete that they saw. When a witness failed to mention an accused’s name in the initial intake years before, it is vital to look at the details of the testimony to see if others corroborate this sighting.
Over the course of the summer, I attended a few days of trial and observed two judgments being passed down. Both Dominique Ntawukulilyayo (ICTR-2005-82) and Yussuf Munyakazi (ICTR-97-36A) were found guilty of genocide. It was frustrating bearing witness to the moment when Munyakazi, who the court found liable for the deaths of over five thousand people, was only sentenced to 25 years in prison, six of which had already passed as he awaited judgment. It is somewhat unfathomable that sentences for such horrible crimes can be so low. Meanwhile, during the summer, the ICTR was also faced with a new challenge when Joseph Nzirorera, one in a joint-accused trial, passed away before the trial’s conclusion. This was the first time that a party in a joint-accused case had died before the end of trial.
It was gratifying to work for and be a part of the ICTR. Exposure to the daily challenges made it possible to see how many obstacles international humanitarian law faces. At the same time, my experience with the ICTR also gave me a greater appreciation for ICTR’s work and contribution to international criminal law, given that the smallest problems can become major hurdles. Despite the criticism that the tribunal has been slow and inadequate, it is undeniable that as a result of this, justice has been delivered to many of the major perpetrators of some of the worst crimes in history.
A version of this article appeared in print in the October 2010 issue of the Bridge.
There is no doubt that the International Criminal Tribunal for Rwanda (ICTR) continues to play an important role in the development of international humanitarian law. ICTR, which was established in 1995, was at the beginning of its 16th year when I arrived there at the end of this past May to start my summer internship. I spent two and a half months living and working in Arusha, Tanzania.
Working in Trial Chamber III, I was assigned to the case of Jean-Baptiste Gatete (ICTR-00-61), a single-accused. His trial had been completed at the beginning of the year and we were awaiting the submission of the final briefs from both the prosecution and defense teams. As the only intern on the case, I performed duties that ranged from researching precedent with regard to admissibility of witness testimony post-trial to preparing points for observation while in Rwanda. Site-visits in Rwanda were delayed until July after the submission of briefs, due to the prevalance of discrepancies in witness testimony. The delay prompted both parties to attempt to add more testimony to the case file in order to bolster their arguments.
Much of my time was spent summarizing and determining the credibility of witness testimony. It was quite harrowing to read horrifying descriptions about their family, friends, and neighbors being pursued and slaughtered. It was even harder to then step back and take a critical look at someone’s traumatizing experience to determine whether or not they were telling the truth. But it is not as simple as asking for the truth as to whether they saw a friend killed; it is about whether their testimony changed from the initial prosecution or defense interview to now include charges against the accused. Discrepancy in witness testimony is a significant problem at the ICTR and it is no wonder, after 16 years, memories still fail regardless of how traumatic the experience may have been. Besides unreliable memory, sometimes the reasons they have for testifying change. It is imperative to verify that when a witness testifies that the accused, in this case Gatete, stopped by and incentivized the militia to kill thousands, it was actually Gatete that they saw. When a witness failed to mention an accused’s name in the initial intake years before, it is vital to look at the details of the testimony to see if others corroborate this sighting.
Over the course of the summer, I attended a few days of trial and observed two judgments being passed down. Both Dominique Ntawukulilyayo (ICTR-2005-82) and Yussuf Munyakazi (ICTR-97-36A) were found guilty of genocide. It was frustrating bearing witness to the moment when Munyakazi, who the court found liable for the deaths of over five thousand people, was only sentenced to 25 years in prison, six of which had already passed as he awaited judgment. It is somewhat unfathomable that sentences for such horrible crimes can be so low. Meanwhile, during the summer, the ICTR was also faced with a new challenge when Joseph Nzirorera, one in a joint-accused trial, passed away before the trial’s conclusion. This was the first time that a party in a joint-accused case had died before the end of trial.
It was gratifying to work for and be a part of the ICTR. Exposure to the daily challenges made it possible to see how many obstacles international humanitarian law faces. At the same time, my experience with the ICTR also gave me a greater appreciation for ICTR’s work and contribution to international criminal law, given that the smallest problems can become major hurdles. Despite the criticism that the tribunal has been slow and inadequate, it is undeniable that as a result of this, justice has been delivered to many of the major perpetrators of some of the worst crimes in history.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Living the Dream: Working in the U.S. Embassy in Beijing
By Anna Ansari '11
Fourteen years ago, when I was a 15-year-old student from Michigan studying in Beijing, I used to walk past the U.S. Embassy and wonder who was lucky and accomplished enough to work within the walls of that compound; this summer, I became one of those people. I came to Brooklyn Law School not because I wanted to study law, but because of my decade-plus engagement with and study of China. I wanted to—and still want to—study Chinese law and to practice in China. But when I began law school, I was unsure of how this desire would manifest itself in a legal curriculum and career. Last fall, as a 2L, I enrolled in Prof. Claire Kelly’s course on International Trade Law and loved it. During the spring of 2010, I took International Trade and Customs and, again, became enamored with it. I had found the link between China and law: trade and customs. It was with this knowledge, this final realization of how to bridge these two interests, that I applied for and ultimately accepted an internship at the U.S. Embassy in Beijing, working for the U.S. Department of Commerce. Rather than elaborate on how the internship affected me personally and professionally, I choose instead to share with you a glimpse of my daily in my life in Beijing, with the hope that seeing such a glimpse encourages other interested students to take the chance, or the leap, to work abroad during their summer.
—
7:30 a.m.: I have pushed snooze on my alarm multiple times, but this time the ayi, the housemaid, knocks on my door and proceeds to walk in to see if I’m awake. I grudgingly get out of bed and head to the bathroom of the three-bedroom house I am staying in—a bathroom that consists of a toilet, a shower nozzle on the wall and a drain on the floor.
8:15 a.m.: After a 10-minute walk, I find myself at the corner of Beijing’s Yongkang Hutong and Andingmennei Daijie. The skies are gray with smog and the air heavy with heat and humidity; it sticks to the silk lining of my suit. I wait at the corner for a cab that will cost me close to nothing for 30 minutes before getting in and directing the driver, in beijinghua, to take me to the U.S. Embassy.
9:00 a.m.: The Embassy guards, provided to the U.S. government by the Chinese government, smile as I flash my yellow security badge, allowing me through the gates of the new embassy complex. As I proceed further, I walk through the metal detectors and set them off, without any indication from the monitoring guards that it matters. It never gets old: walking under that gate, setting off the alarm and simply being allowed to pass on through.
10:00 a.m.: After checking in with my bosses, I sit down to work. My morning work varies. One day is spent looking at Chinese development plans and analyzing potential subsidy issues for Import Administration and another spent organizing a golf trade show to encourage U.S. enterprises to invest in China as part of the National Export Initiative for the Foreign Commercial Service.
1:00 p.m.: My afternoons are as equally varied as my mornings. On some days, I conducted research on subsidies and export initiatives while others were spent at the offices of American law firms, assisting the head of commerce in advising firms on how their clients might best break into the Chinese market. My time was also spent meeting with American legal professionals about the state of the rule of law in China. On one occasion, I represented the Department of Commerce in a meeting with Carolyn Lamm, the head of the American Bar Association, briefing her on the state of U.S. law firms in China and their access to the Chinese market. In another instance, I had the opportunity to speak with the U.S. Ambassador to China about the development of the rule of law in China.
5:30 p.m.: My day ends as I walk out of the embassy, passing the Marines exercising in the lawn. I break into a sweat the moment I step outside the confines of the cool, air-conditioned building into the hot and heavy Beijing summer air. I travel to the corner of Dongfengdong Lu and hail a cab, knowing that not only have I made myself proud by giving my best to my day’s work but also that I have become one of those people I wondered about as a teenager, someone who has been granted the privilege of working for the government of the United States of America in China, even if it is only as an intern. I smile as I get into my taxi, and look forward to the Beijing evening that lies ahead of me.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Fourteen years ago, when I was a 15-year-old student from Michigan studying in Beijing, I used to walk past the U.S. Embassy and wonder who was lucky and accomplished enough to work within the walls of that compound; this summer, I became one of those people. I came to Brooklyn Law School not because I wanted to study law, but because of my decade-plus engagement with and study of China. I wanted to—and still want to—study Chinese law and to practice in China. But when I began law school, I was unsure of how this desire would manifest itself in a legal curriculum and career. Last fall, as a 2L, I enrolled in Prof. Claire Kelly’s course on International Trade Law and loved it. During the spring of 2010, I took International Trade and Customs and, again, became enamored with it. I had found the link between China and law: trade and customs. It was with this knowledge, this final realization of how to bridge these two interests, that I applied for and ultimately accepted an internship at the U.S. Embassy in Beijing, working for the U.S. Department of Commerce. Rather than elaborate on how the internship affected me personally and professionally, I choose instead to share with you a glimpse of my daily in my life in Beijing, with the hope that seeing such a glimpse encourages other interested students to take the chance, or the leap, to work abroad during their summer.
—
7:30 a.m.: I have pushed snooze on my alarm multiple times, but this time the ayi, the housemaid, knocks on my door and proceeds to walk in to see if I’m awake. I grudgingly get out of bed and head to the bathroom of the three-bedroom house I am staying in—a bathroom that consists of a toilet, a shower nozzle on the wall and a drain on the floor.
8:15 a.m.: After a 10-minute walk, I find myself at the corner of Beijing’s Yongkang Hutong and Andingmennei Daijie. The skies are gray with smog and the air heavy with heat and humidity; it sticks to the silk lining of my suit. I wait at the corner for a cab that will cost me close to nothing for 30 minutes before getting in and directing the driver, in beijinghua, to take me to the U.S. Embassy.
9:00 a.m.: The Embassy guards, provided to the U.S. government by the Chinese government, smile as I flash my yellow security badge, allowing me through the gates of the new embassy complex. As I proceed further, I walk through the metal detectors and set them off, without any indication from the monitoring guards that it matters. It never gets old: walking under that gate, setting off the alarm and simply being allowed to pass on through.
10:00 a.m.: After checking in with my bosses, I sit down to work. My morning work varies. One day is spent looking at Chinese development plans and analyzing potential subsidy issues for Import Administration and another spent organizing a golf trade show to encourage U.S. enterprises to invest in China as part of the National Export Initiative for the Foreign Commercial Service.
1:00 p.m.: My afternoons are as equally varied as my mornings. On some days, I conducted research on subsidies and export initiatives while others were spent at the offices of American law firms, assisting the head of commerce in advising firms on how their clients might best break into the Chinese market. My time was also spent meeting with American legal professionals about the state of the rule of law in China. On one occasion, I represented the Department of Commerce in a meeting with Carolyn Lamm, the head of the American Bar Association, briefing her on the state of U.S. law firms in China and their access to the Chinese market. In another instance, I had the opportunity to speak with the U.S. Ambassador to China about the development of the rule of law in China.
5:30 p.m.: My day ends as I walk out of the embassy, passing the Marines exercising in the lawn. I break into a sweat the moment I step outside the confines of the cool, air-conditioned building into the hot and heavy Beijing summer air. I travel to the corner of Dongfengdong Lu and hail a cab, knowing that not only have I made myself proud by giving my best to my day’s work but also that I have become one of those people I wondered about as a teenager, someone who has been granted the privilege of working for the government of the United States of America in China, even if it is only as an intern. I smile as I get into my taxi, and look forward to the Beijing evening that lies ahead of me.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Search for Stable Territory: Interning in Ecuador
By Gillian Cassell-Stiga '11
When I landed in Quito, I was more uncertain about what to expect from my summer internship at International Rights Advocates (IRAdvocates) than how to adjust to life in Ecuador for three months. I had worked in South America before, but accepted the internship after just a single phone interview with my supervising attorney. IRAdvocates is the successor to the litigation arm of the International Labor Rights Fund and was formed in an effort to hold corporations and governments accountable for human rights violations worldwide through the use of innovative legal mechanisms. The organization devotes a large percentage of its caseload to claims brought in U.S. federal courts by foreign plaintiffs under the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act. The statute allows for federal jurisdiction over foreign human rights violations by U.S. corporations. In many cases, there is no other basis for jurisdiction in U.S. courts, which are generally pro-plaintiff and apply more stringent human rights standards than foreign courts. Federal courts in the U.S. also have jurisdiction over the more significant assets of U.S. corporations and are in a position to provide greater relief to victims in foreign countries where assets may be insufficient to meet claims.
Once settled in Quito, I began working at the offices of Conrad & Scherer LLP. Through a strategic partnership, the firm serves as the office for IRAdvocate’s sole attorney in South America. I was excited by the prospect of working on human rights litigation with the abundant resources of a private firm. A number of our cases dealt with environmental contamination and related injuries to human health. In addition, we handled suits brought on behalf of workers, community dissenters and their families, all of whom had experienced violent abuse at the hands of paramilitaries hired by corporations as “security” on development projects. In preparation for litigation, I conducted research on uncommon and fascinating legal issues including forum non-conveniens, spoliation of evidence and the procedures for deposing persons imprisoned in Colombia. Most of my time was dedicated to researching and drafting the complaint for a massive contamination case, but I also reviewed client files and interviews with minor plaintiffs from a poor Andean village and investigated the bleak prognoses of their high-level exposure. The tragic histories of these permanently disabled children helped me to understand the incredible relief that even a small settlement in their favor would provide.
But winning these cases is an uphill battle, and a recent ruling by the U.S. Court of Appeals for the Second Circuit could present a significant roadblock to bringing ATS claims. In its Sept. 17th ruling in Kiobel v. Royal Dutch Petroleum Co., the appellate court held that ATS liability does not extend to corporate defendants. Interpreting the scope of ATS liability as governed by customary international law, the court held that “because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS.” The Second Circuit ruling directly contradicts the Eleventh Circuit, which previously recognized the possibility of corporate ATS liability in Romero v. Drummond (2008). In Romero, plaintiffs alleged that corporate executives hired paramilitaries to torture and assassinate labor union leaders. While the court granted summary judgment and dismissed the claims, finding insufficient evidence of a relationship between the executives and paramilitary actors, it held that ATS provided jurisdiction over corporate defendants. It will now be up to the Supreme Court to address the clear circuit split on the issue of corporate liability, and they may do so rather soon by granting a conditional cross-petition from Presbybterian Church of Sudan v. Talisman Energy. Should the court side with the Second Circuit, another obstacle will be thrown in the way of those trying to hold U.S. corporations accountable for human rights violations abroad.
While in Quito, I prepared for a meeting in which we would advise plaintiffs to accept settlement in one of our cases. We expected there to be some resistance, as the offered amount fell short of the inflated expectations that many of our clients held regarding what could be gained from litigation. Sadly, the recent Second Circuit decision will only further impair IRAdvocate’s ability to secure such settlements and it is unclear how far the decision will roll back accountability for corporations operating abroad. But regardless of the uncertainty ahead, organizations like IRAdvocates are still working on creative solutions to uphold liability for companies and even during my last week in Quito, my supervising attorney was preparing to leave for interviews with plaintiffs for a developing case in Peru.
A version of this article appeared in print in the October 2010 issue of the Bridge.
When I landed in Quito, I was more uncertain about what to expect from my summer internship at International Rights Advocates (IRAdvocates) than how to adjust to life in Ecuador for three months. I had worked in South America before, but accepted the internship after just a single phone interview with my supervising attorney. IRAdvocates is the successor to the litigation arm of the International Labor Rights Fund and was formed in an effort to hold corporations and governments accountable for human rights violations worldwide through the use of innovative legal mechanisms. The organization devotes a large percentage of its caseload to claims brought in U.S. federal courts by foreign plaintiffs under the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act. The statute allows for federal jurisdiction over foreign human rights violations by U.S. corporations. In many cases, there is no other basis for jurisdiction in U.S. courts, which are generally pro-plaintiff and apply more stringent human rights standards than foreign courts. Federal courts in the U.S. also have jurisdiction over the more significant assets of U.S. corporations and are in a position to provide greater relief to victims in foreign countries where assets may be insufficient to meet claims.
Once settled in Quito, I began working at the offices of Conrad & Scherer LLP. Through a strategic partnership, the firm serves as the office for IRAdvocate’s sole attorney in South America. I was excited by the prospect of working on human rights litigation with the abundant resources of a private firm. A number of our cases dealt with environmental contamination and related injuries to human health. In addition, we handled suits brought on behalf of workers, community dissenters and their families, all of whom had experienced violent abuse at the hands of paramilitaries hired by corporations as “security” on development projects. In preparation for litigation, I conducted research on uncommon and fascinating legal issues including forum non-conveniens, spoliation of evidence and the procedures for deposing persons imprisoned in Colombia. Most of my time was dedicated to researching and drafting the complaint for a massive contamination case, but I also reviewed client files and interviews with minor plaintiffs from a poor Andean village and investigated the bleak prognoses of their high-level exposure. The tragic histories of these permanently disabled children helped me to understand the incredible relief that even a small settlement in their favor would provide.
But winning these cases is an uphill battle, and a recent ruling by the U.S. Court of Appeals for the Second Circuit could present a significant roadblock to bringing ATS claims. In its Sept. 17th ruling in Kiobel v. Royal Dutch Petroleum Co., the appellate court held that ATS liability does not extend to corporate defendants. Interpreting the scope of ATS liability as governed by customary international law, the court held that “because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS.” The Second Circuit ruling directly contradicts the Eleventh Circuit, which previously recognized the possibility of corporate ATS liability in Romero v. Drummond (2008). In Romero, plaintiffs alleged that corporate executives hired paramilitaries to torture and assassinate labor union leaders. While the court granted summary judgment and dismissed the claims, finding insufficient evidence of a relationship between the executives and paramilitary actors, it held that ATS provided jurisdiction over corporate defendants. It will now be up to the Supreme Court to address the clear circuit split on the issue of corporate liability, and they may do so rather soon by granting a conditional cross-petition from Presbybterian Church of Sudan v. Talisman Energy. Should the court side with the Second Circuit, another obstacle will be thrown in the way of those trying to hold U.S. corporations accountable for human rights violations abroad.
While in Quito, I prepared for a meeting in which we would advise plaintiffs to accept settlement in one of our cases. We expected there to be some resistance, as the offered amount fell short of the inflated expectations that many of our clients held regarding what could be gained from litigation. Sadly, the recent Second Circuit decision will only further impair IRAdvocate’s ability to secure such settlements and it is unclear how far the decision will roll back accountability for corporations operating abroad. But regardless of the uncertainty ahead, organizations like IRAdvocates are still working on creative solutions to uphold liability for companies and even during my last week in Quito, my supervising attorney was preparing to leave for interviews with plaintiffs for a developing case in Peru.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Spotlight: A Semester Abroad in Hong Kong, China
By Adam Gibbons '12
Two Americans, two Frenchmen, a Canadian, and a Chilean walk into a bar. It sounds like the opening line of a joke, but at the University of Hong Kong, it’s the composition of people living in my flat, a veritable United Nations in the world of student housing. The Law Faculty at HKU is similarly international, with professors hailing from across Europe, Asia, and the Americas. While English is the medium of instruction, cross-culture education is an important and valuable component of the curriculum. The university’s international focus is also reflected in its course selection, as it offers courses ranging from Law of International Finance to International Environmental Law, among other international specialties. HKU also organizes a number of lecture series featuring high profile speakers; for example, the school is currently slated to welcome Lord David Edmond Neuberger, the second most senior judge in England, who will be speaking on the role of equity in modern jurisprudence. Prof. Lynn A. Stout, from UCLA School of Law, is also scheduled to lead a seminar on the common law rules regulating derivatives. In addition to receiving a great legal education for the semester, living in Hong Kong is a truly amazing experience. What Hong Kong lacks in area, it makes up for in character. From chicken feet dim sum to McDonald’s—of where there seem to be more per capita than any place I have experienced—and world-class museums to enviable beaches, Hong Kong is a great place to live and explore. Bottom line is, if you are interested in gaining an international perspective in your legal education, and have a great time doing it, you should consider doing an exchange at HKU.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Two Americans, two Frenchmen, a Canadian, and a Chilean walk into a bar. It sounds like the opening line of a joke, but at the University of Hong Kong, it’s the composition of people living in my flat, a veritable United Nations in the world of student housing. The Law Faculty at HKU is similarly international, with professors hailing from across Europe, Asia, and the Americas. While English is the medium of instruction, cross-culture education is an important and valuable component of the curriculum. The university’s international focus is also reflected in its course selection, as it offers courses ranging from Law of International Finance to International Environmental Law, among other international specialties. HKU also organizes a number of lecture series featuring high profile speakers; for example, the school is currently slated to welcome Lord David Edmond Neuberger, the second most senior judge in England, who will be speaking on the role of equity in modern jurisprudence. Prof. Lynn A. Stout, from UCLA School of Law, is also scheduled to lead a seminar on the common law rules regulating derivatives. In addition to receiving a great legal education for the semester, living in Hong Kong is a truly amazing experience. What Hong Kong lacks in area, it makes up for in character. From chicken feet dim sum to McDonald’s—of where there seem to be more per capita than any place I have experienced—and world-class museums to enviable beaches, Hong Kong is a great place to live and explore. Bottom line is, if you are interested in gaining an international perspective in your legal education, and have a great time doing it, you should consider doing an exchange at HKU.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Friday, January 28, 2011
Combating Human Trafficking in Bangkok
By Brigitte Hamadey '12
Two planes and a 20-hour commute landed me in Bangkok, Thailand on May 29 this summer. I was about to begin a three-month internship at the United Nations Inter-Agency Project on Human Trafficking (UNIAP), where I hoped to become a veritable expert on trafficking.
I arrived in Bangkok on the last day of curfew and witnessed the ashes of political turmoil between Thai “red shirt” demonstrators and the government—an issue that, while subsided, was never fully resolved. The clashes claimed dozens of lives and injured over a thousand people.
In the weeks following the violence, an atmosphere of uncertainty plagued the city. Most Thais preferred not to discuss the political situation. Those that did confessed that they never imagined such events could take place on their doorsteps, especially since Thailand has been historically (and appropriately) dubbed the “land of smiles”—a reputation earned from its peaceful culture and society. It is a society where its citizens proudly stand at attention when the national anthem plays on loud speakers twice a day in the capitol, and where its citizens offer unwavering deference and devotion to its king.
This tone colored the backdrop to my summer at UNIAP, a project that was established in 2000 and seeks to coordinate responses to human trafficking in the Greater Mekong Subregion. During a time when everyday politics rested on extremely rocky terrain, the internship proved to be a rewarding challenge to refocus attention toward the issue of human trafficking, a crime that is often overlooked and loaded with misconceptions.
Human trafficking is the third most profitable criminal industry in the world. Its clandestine nature and fluctuating patterns, however, make it exceptionally difficult to monitor. Most people I spoke to equate human trafficking with women and the sex trade. While the sex trade comprises a large part of the industry, trafficking in persons also occurs in the form of debt bondage, labor exploitation and domestic servitude; for example, an emerging concern is the trafficking of men onto fishing boats at sea.
While tackling an independent project on cross border cooperation, I was able to meet with NGOs and agencies of the UN to determine which government efforts were successful in fighting against such examples of human trafficking. Governments are eager to collaborate against this serious crime for various reasons, including sincere concern, preservation of public reputation and a desire to make larger strides than the next country.
However, a major impediment to success against trafficking in persons is implementation. Decisions that are made at the ministerial level are often not executed by local authorities. During my fieldwork interviews, I discovered that some local authorities were not even aware of government agreements on human trafficking that dictated some of their daily duties. Infrastructure, communication, resources and willingness are often to blame for these shortcomings. But, regardless of the reasons why, it is evident that trickle-down diplomacy is not the most effective means of battling human trafficking.
This uphill struggle requires tremendous dedication by NGOs and international organizations, in addition to government actors. Without improved implementation and prosecutions in this field of law, progress will most likely remain stagnant. Furthermore, the role of actors such as UNIAP remains invariably important in eradicating the very grave and prevalent international crime of human trafficking.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Two planes and a 20-hour commute landed me in Bangkok, Thailand on May 29 this summer. I was about to begin a three-month internship at the United Nations Inter-Agency Project on Human Trafficking (UNIAP), where I hoped to become a veritable expert on trafficking.
I arrived in Bangkok on the last day of curfew and witnessed the ashes of political turmoil between Thai “red shirt” demonstrators and the government—an issue that, while subsided, was never fully resolved. The clashes claimed dozens of lives and injured over a thousand people.
In the weeks following the violence, an atmosphere of uncertainty plagued the city. Most Thais preferred not to discuss the political situation. Those that did confessed that they never imagined such events could take place on their doorsteps, especially since Thailand has been historically (and appropriately) dubbed the “land of smiles”—a reputation earned from its peaceful culture and society. It is a society where its citizens proudly stand at attention when the national anthem plays on loud speakers twice a day in the capitol, and where its citizens offer unwavering deference and devotion to its king.
This tone colored the backdrop to my summer at UNIAP, a project that was established in 2000 and seeks to coordinate responses to human trafficking in the Greater Mekong Subregion. During a time when everyday politics rested on extremely rocky terrain, the internship proved to be a rewarding challenge to refocus attention toward the issue of human trafficking, a crime that is often overlooked and loaded with misconceptions.
Human trafficking is the third most profitable criminal industry in the world. Its clandestine nature and fluctuating patterns, however, make it exceptionally difficult to monitor. Most people I spoke to equate human trafficking with women and the sex trade. While the sex trade comprises a large part of the industry, trafficking in persons also occurs in the form of debt bondage, labor exploitation and domestic servitude; for example, an emerging concern is the trafficking of men onto fishing boats at sea.
While tackling an independent project on cross border cooperation, I was able to meet with NGOs and agencies of the UN to determine which government efforts were successful in fighting against such examples of human trafficking. Governments are eager to collaborate against this serious crime for various reasons, including sincere concern, preservation of public reputation and a desire to make larger strides than the next country.
However, a major impediment to success against trafficking in persons is implementation. Decisions that are made at the ministerial level are often not executed by local authorities. During my fieldwork interviews, I discovered that some local authorities were not even aware of government agreements on human trafficking that dictated some of their daily duties. Infrastructure, communication, resources and willingness are often to blame for these shortcomings. But, regardless of the reasons why, it is evident that trickle-down diplomacy is not the most effective means of battling human trafficking.
This uphill struggle requires tremendous dedication by NGOs and international organizations, in addition to government actors. Without improved implementation and prosecutions in this field of law, progress will most likely remain stagnant. Furthermore, the role of actors such as UNIAP remains invariably important in eradicating the very grave and prevalent international crime of human trafficking.
A version of this article appeared in print in the October 2010 issue of the Bridge.
Subscribe to:
Posts (Atom)