International Legal Updates

of 16

Please download to get full document.

View again

All materials on our website are shared by users. If you have any questions about copyright issues, please report us to resolve them. We are always happy to assist you.
16 pages
0 downs
International Legal Updates
  Human Rights Brief   Volume 18|Issue 3 Article 92011 International Legal Updates  Aimee Mayer  American University Washington College of Law  Jessica Lynd  American University Washington College of Law Shubra Ohri  American University Washington College of Law Catherine Davies  American University Washington College of Law Roushani Mansoor  American University Washington College of Law See next page for additional authors Follow this and additional works at:hp://  is Column is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ AmericanUniversity Washington College of Law. It has been accepted for inclusion in Human Rights Brief by an authorized administrator of Digital Commons@ American University Washington College of Law. For more information, please contact Recommended Citation Mayer,Aimee, Jessica Lynd, Shubra Ohri, Catherine Davies, Roushani Mansoor, Molly Hofsommer, Misty Seemans, Leah Chavla, andKaitlin Brush. "International Legal Updates." Human Rights Brief 18, no.3 (2011): 42-55.   Authors  Aimee Mayer, Jessica Lynd, Shubra Ohri, Catherine Davies, Roushani Mansoor, Molly Hofsommer, Misty Seemans, Leah Chavla, and Kaitlin Brush is column is available in Human Rights Brief:hp://  42 N ORTH  A MERICA F AMILY  F ACES  C RIMINAL  C HARGES   FOR   H UMAN  T RAFFICKING   IN  C ANADA In what has been called Canada’s largest human trafficking case to date, Ferenc Domotor Sr. is accused of being the ring-leader in a human trafficking and fraud operation in the City of Hamilton, Ontario, Canada. Domotor Sr. is currently facing human trafficking, fraud, conspiracy and organized crime charges before the Ontario Superior Court of Justice. Along with mul-tiple alleged co-conspirators, Domotor Sr. is accused of luring 19 Hungarian nationals to Canada with the promise of high-paying  jobs. Instead, when they arrived they were allegedly forced to work as slave laborers for Domotor Sr.'s family-run stucco and construction business. The Royal Canadian Mounted Police (RCMP) and the Canadian Border Services Agency (CBSA) arrested ten members of Domotor Sr.’s extended family on charges of unlawful recruitment and exploitation of foreign nationals, and of withholding travel documents. Charges were also filed against other members of Domotor Sr.’s family for receiving finan-cial benefit from the exploitation of the Hungarian workers by collecting the work-ers’ welfare payments.Allegedly, Domotor Sr. financed and arranged for the victims to fly to Canada, and instructed them to claim refugee status upon arrival. Domotor Sr. then locked them in the basements of homes in Hamilton and Ancaster, Ontario where some were fed “three-day-old meals that even dogs would not eat.” Domotor Sr. then allegedly con-fiscated their passports and forced them to work at a construction site for seven days a week without pay. Several victims claim that they were threatened, ordered not to leave the houses unaccompanied, and beaten.Canada has only recently adopted mea-sures to aid trafficking victims and pros-ecute traffickers. Trafficking in persons did not become an offense under the Criminal Code until November 2005 due to a lack of widespread awareness about the extent of the problem and insufficient prioritization INTERNATIONAL LEGAL UPDATES of the issue in the political sphere. Before this amendment ,   the Criminal Code did not contain any provisions that specifically forbade trafficking in persons, although several other offenses such as, kidnap- ping, uttering threats, and extortion were used to prosecute human traffickers. So far, however, convictions under the new law have occurred only in cases involving Canadian women and girls subjected to sexual exploitation. The prosecution of Domotor Sr. marks the first case of forced labor not involv-ing sexual exploitation that will be tried under the law. The prosecution of Domotor Sr. is also significant because the victims were foreign nationals – a move that may indicate Canada’s new willingness to pros-ecute cases involving foreigners rather than limiting prosecution to cases where victims are Canadian citizens. This case also high-lights what immigration agency records have suggested: more human trafficking victims in Canada are forced into manual labor than are forced into sex trafficking.In the past decade, Canada has taken significant steps toward addressing human trafficking. On October 21, 2010, the Canadian federal government introduced the Preventing Human Smugglers from Abusing Canada’s Immigration System Act. This legislation proposes extensive measures to stop human trafficking by mak-ing it easier to prosecute human traffickers, imposing mandatory prison sentences on convicted human smugglers, and holding ship owners and operators accountable for use of their ships in human smuggling operations. Additionally, in 2002 Canada ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supple-menting the United Nations Convention against Transnational Organized Crime (the Protocol). Canada made no reserva-tions or declarations and thus is obligated to uphold all parts of the Protocol. Canada’s legal obligations under the treaty include enacting legislative measures to establish criminal offenses for trafficking, taking measures to provide trafficking victims with social and psychological services, and taking steps to prevent human traffick-ing. Since May 2006, Canada has started to provide foreign victims of human traf-ficking with temporary residence permits and access to interim healthcare coverage. Subsequent legislation gave victims the ability to obtain a work permit.The successful prosecution of Domotor Sr. would mark a major step forward for Canada in combating human trafficking. The case itself suggests a greater awareness of importance of enforcing human traffick-ing laws among Canadian law enforcement officers and prosecutors, and a greater willingness to take aggressive measures to protect victims and punish perpetrators. Initially, Domotor Sr. was released on CAD $50,000 bail and the Justice of the Peace ordered him to surrender his passport, refrain from travelling outside Ontario, and remain in his home unless accompanied by one or more of his sureties. Additionally, he was ordered not to have any contact with his alleged trafficking victims or have any foreign nationals residing with him. However, at the time of printing, Domotor Sr.’s bail was revoked and he was in cus-tody awaiting trial. U.S. R  ESUMES  D EPORTATIONS   OF  H AITIAN  N ATIONALS  A MIDST  C HOLERA  E PIDEMIC Wildrick Guerrier, a Haitian national and a long-time resident of the U.S., died of cholera-like symptoms in an overcrowded Haitian jail approximately one week after the U.S. deported him for a conviction of firearms possession. Subjecting Guerrier to the life-threatening conditions of Haitian  jails appears to be grossly disproportionate to his offense.In a February press release, the Inter-American Commission on Human Rights (IACHR) urged the United States to halt deportations of Haitians with serious ill-nesses or family ties in the U.S. The IACHR asserted that deportation could endanger the lives of Haitian nationals due to the continuing humanitarian crisis in Haiti. The Haitian government routinely imprisons deportees with a U.S. criminal record. Prisons in Haiti are overcrowded and lack potable water, sufficient sanita- 1Mayer et al.: International Legal UpdatesPublished by Digital Commons @ American University Washington College of Law, 2011  43 tion, and access to adequate medical treat-ment, all of which contribute to the spread of cholera, tuberculosis, and other diseases. The IACHR has issued precautionary mea-sures requesting that the U.S. suspend the deportation of five Haitian nationals until Haiti can guarantee that detention facilities meet the necessary minimum standards.After the earthquake in Haiti in January 2010, the U.S. government designated Haiti as a country whose nationals could receive temporary protected status (TPS) and initially suspended the deportation of Haitians with criminal convictions. One year after the earthquake hit Haiti, over 1 million people are still displaced and hundreds of bodies still have not been  pulled out of the rubble. In addition, Haiti continues to grapple with a cholera epi-demic. While the TPS designation extends until July 2011, the U.S. resumed deporta-tions of Haitians on January 20, 2011. The Department of Homeland Security (DHS) claimed to have lifted the moratorium on deportations because it could not detain deportable Haitians indefinitely and their release was not in the interest of national security.Many Haitians currently residing in the U.S. have been granted TPS. TPS allows foreign nationals to remain in the U.S. when conditions in their home coun-tries, such as an ongoing armed conflict or a natural disaster, temporarily prevent them from returning safely. Those apply-ing for TPS are subject to the eligibility requirements listed in 8 U.S.C. § 1254(a) and 8 C.F.R. §§ 244.2 — 244.4, however, meaning they must be nationals of or have habitually resided in a country designated for TPS, and must have continuous physi-cal presence in the U.S. since that country’s most recent TPS designation. Most notably, an individual is ineligible for TPS if he has been convicted of any felony or two or more misdemeanors in the U.S., has perse-cuted others, is otherwise subject to one of the bars to asylum, or is subject to one of the criminal or security related grounds of inadmissibility. These eligibility require-ments have prevented many Haitians, like Guerrier, from receiving TPS. DHS’s deci-sion to resume deportations places these individuals at the greatest risk as prison conditions in Haiti are a breeding ground for the spread of cholera and other dis-eases. The current conditions in Haitian  jails support the Center for Constitutional Rights’s claims that resuming deportations “would end up being a death sentence for many.”Although the deportation and likely imprisonment of Haitian nationals, espe-cially stemming from two misdemeanor convictions, seems to violate the guarantee of proportionality between punishment and crime under the Eighth Amendment to the U.S. Constitution. The proposition that the Eighth Amendment does not extend to deportations on the ground that a depor-tation is not a punishment for crime has  been upheld since it was first established  by  Fing Yue Ting v. United States , 149 U.S. 698 (1893). Nevertheless, there is something intrinsically disproportionate about allowing individuals convicted of misdemeanors to share the same fate as those convicted of capital offenses, given the likelihood that imprisonment in Haiti following deportation will likely lead to death. While the U.S. is not obligated to suspend the deportations of Haitians indefinitely or to extend TPS to ineligible Haitian nationals residing in the U.S., the humanitarian concerns in Haiti indicate that the timing of the agency’s decision to resume deportations could not be worse. If nothing else, the U.S. should extend the moratorium on deportations to Haiti until the health and political crisis in the country abates. E XTRAJUDICIAL  K  ILLINGS   AND  P OLICE  B RUTALITY   IN  J AMAICA On January 7, 2011, Jamaican police killed an alleged gang leader, who neigh- bors claim was innocent and unarmed when shot by police. This incident follows the August 2010 release of an amateur video showing Jamaican police shoot-ing and gruesomely beating to death an unarmed man after he had been subdued. These incidents of police brutality and extrajudicial killings are not the first to sur-face in Jamaica. Although Jamaica’s popu-lation is less than three million, 140 people die in police shootings each year, making Jamaica’s rate of lethal police shootings one of the highest in the world. From 1999 to 2009, 1,900 people were killed in police shootings, but only one police officer was convicted of manslaughter – a second was  brought to trial and acquitted on appeal. Allowing extrajudicial killings denies sus- pected criminals the rights to due process, humane treatment, and judicial protection.These extrajudicial killings and inci-dents of police brutality contravene the American Convention on Human Rights (ACHR), which Jamaica ratified in 1978. Article 4 of the ACHR guarantees the right to life; Article 5, the right to humane treatment; Article 8, the right to due pro-cess; and Article 25 the right to judicial  protection. Jamaica’s systematic failure to conduct detailed, timely, and impartial investigations into police shootings and extrajudicial executions violates the right to due process and to judicial protec-tion. The Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights have held that state parties must undertake com- prehensive, prompt, and impartial inves-tigation when rights protected under the ACHR are violated, and that states must  prosecute and punish those responsible for violations. The IACHR has specifically expressed concern about the police killings in Jamaica.The extrajudicial killings also violate Jamaica’s international legal obligations under the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR guarantees the right to liberty, the right to be free from arbitrary arrest and detention, and the right to judicial proceed-ings. Moreover, Article 2(3) of the ICCPR obligates States Parties to ensure that those whose rights have been violated have access to effective judicial, legislative, and administrative remedies. However, Jamaica has declared a state of emergency with regards to gang violence, and declared to the United Nations Secretary-General that it may therefore derogate from many of its obligations under the ICCPR.The United Nations also has several mechanisms to protect against police bru-tality and extrajudicial killings. Although these mechanisms are not legally bind-ing, they demonstrate the international community’s commitment to prevent-ing police brutality. The UN General Assembly adopted a Code of Conduct for Law Enforcement Officials (Code of Conduct) through the passage of resolution 34/169 . Article 3 of the Code of Conduct states that “law enforcement officials may use force only when strictly necessary and to the extent required for the perfor-mance of their duty.” Similarly, the   UN Congress on the Prevention of Crime and the Treatment of Offenders adopted the   Basic Principles on the Use of Force and 2  Human Rights Brief, Vol. 18, Iss. 3 [2011], Art. 9  44 Firearms by Law Enforcement Officials (Basic Principles). The Basic Principles recommend that police use lethal weapons only when absolutely necessary to protect life, and beseech police to respond propor-tionately to threats and unlawful activities. The Basic Principles also request the gov-ernments of UN Member States to ensure that arbitrary or abusive use of force and firearms by law enforcement officials is  punished as a criminal offense. Finally, the Basic Principles specify that exceptional circumstances such as internal political instability or other public emergencies may not justify any departure from these  principles. Jamaican police use Jamaica’s high crime rates and gang-related vio-lence to justify the use of disproportionate force. Jamaica’s National Security Ministry estimates that there are 268 active gangs in Jamaica — a country with one of the highest murder rates in the world. These statistics, however, do not justify the use of  police brutality under the Basic Principles. Police must ensure public security without compromising human rights.Jamaican police have attempted to reduce the violence in Jamaica by using the “hot spot” strategy, whereby police and military personnel flood a particular neighborhood and take swift action against gangs in the area. Opponents criticize this strategy as an ineffective show of force that does not end the gang violence. As an alternative, commentators have suggested that Jamaica institute a policy of preventive detention that specifically targets the drug kingpins and major players in the gangs. Preventive detention refers to a short-term strategy that aims to remove the leader-ship of violent gangs and drug rings from society in order to prevent the emergence of “hot spots”— areas where the high level of gang violence has created a state of emergency. While this would eliminate the  problem of collective punishment, it would also create the potential for human rights abuses associated with pre-trial detention, including potentially violating suspects’ rights to liberty, due process, and judicial  proceedings.Important elements of prevention in relation to extra-judicial killings and police  brutality may be the use of a combina-tion of human rights training for police officers, community policing techniques, improvement of support systems for police who feel that they are in danger, and a strong judicial system that enforces the rule of law. These types of solutions would eliminate the perceived need for police to take matters into their own hands by assur-ing that the police are confident that the  judicial system will effectively and justly  punish those engaged in violence. Also, the judicial system must enforce the laws with respect to police brutality so that  police officers are also sanctioned for their acts of violence. Thus, an overall strength-ening of the rule of law is likely to help resolve human rights abuses perpetrated by Jamaican police.  Aimee Mayer, a J.D. candidate at the American University Washington College of Law, covers  North America for the Human Rights Brief. L ATIN  A MERICA  S EEKING  J USTICE   FOR   V ICTIMS   OF  O IL  E XPLOITATION   IN  L AGO  A GRIO , E CUADOR  After seventeen years of litigating  Aguinda et al. v. Chevron Corp. in at least three fora, the Lago Agrio community, an oil-rich area in the Sucumbíos prov-ince of Ecuador, won a judgment against Chevron-Texaco Corporation for its toxic-waste contamination of the Amazon. On February 14, 2011, an Ecuadorean court awarded $8.6 billion in damages, plus an additional amount for punitive dam-ages if Chevron did not publicly apologize within fifteen days of the court’s decision  — Chevron did not comply. While the  judgment may be unenforceable because Chevron-Texaco has no assets in Ecuador, it is a victory for the implementation of the American Convention on Human Rights (ACHR) and numerous other international agreements that protect individuals’ rights.The court found that Texaco’s oil opera-tions — before it merged with Chevron Corporation — from 1964 and 1992 pol-luted the Ecuadorian and Peruvian rainfor-est by not properly containing waste pits for toxic oil exploration byproducts. The  pollution resulted in widespread harm to the environment and human health.Two lawsuits were initially filed in U.S. federal court but were dismissed for  forum non conveniens . Chevron, however, advocated for and agreed to litigation in the Ecuadorian courts. This litigation in Ecuador lasted approximately eight years  prior to February’s judgment. Among Chevron’s defenses was that it could not be found liable for individual citizens’ com- plaints because the government of Ecuador had released it from all liability in two sepa-rate contracts. The court, however, rejected this argument, stating that on their faces, the agreements only referenced the government and not suits by individual citizens.The court explained that even if the releases had included individuals, the con-tract would be illegal and in violation of the fundamental rights protected under the Constitution of Ecuador and numer-ous international agreements. The court also rejected Chevron’s argument that the state of Ecuador was acting on behalf of the Ecuadorian people, and that the gov-ernment-signed release agreements should  bind all Ecuadorian citizens. The court distinguished governmental acts of repre-sentation, which “show the unilateral will of the state,” from acts where the govern-ment is a participatory partner, such as to contracts with a corporation. Acts where the government is a partner are not acts of representation binding all citizens. Citing Ecuador’s Constitution and the ACHR, ratified by Ecuador in 1977, the court held that contracts such as the 1995 and 1998 releases could not extinguish a  plaintiff’s right to bring claims. Article 8.1 of the ACHR guarantees every person the right to a hearing for the determination of his or her rights.The court additionally found a right to claims in the courts under Article 18 of the American Declaration of Human Rights and Duties of Man of 1948, Article 10 the Universal Declaration of the Human Rights, and Article 14 of the International Covenant on Civil and Political Rights. The court reasoned that because the Constitution and international agreements recognize the right to a hearing as a fundamental right guaran-teed by the state, a state could not relinquish that right in a contract. Thus, a court could not interpret the Ecuadorian government’s  prior releases with Texaco as binding on all affected citizens. Although the court’s interpretation of the relationship between states, trans-national actors, and individuals upheld human rights in the face of a development model that often leaves individuals voice-less, both parties plan to appeal the judg-ment. Chevron-Texaco claims the trial was fraudulent and inconsistent with scientific data, despite the court’s stated attempt to reconcile both parties’ scientific assess- 3Mayer et al.: International Legal UpdatesPublished by Digital Commons @ American University Washington College of Law, 2011
Related Search
We Need Your Support
Thank you for visiting our website and your interest in our free products and services. We are nonprofit website to share and download documents. To the running of this website, we need your help to support us.

Thanks to everyone for your continued support.

No, Thanks