Lawyers & Jurists: China Must End Its Intimidation and Detention of Human Rights Lawyers

Activists with the Hong Kong Alliance in Support of Patriotic Democratic Movements of China and China Human Rights Lawyers Concern Group demand the release of detained Chinese human rights activists and lawyers during a protest outside the China Liaison Office in Hong Kong on Oct. 9. (Jerome Favre / European Pressphoto Agency)

We, the undersigned lawyers and jurists, write to express our deep concern about the scores of lawyers detained or intimidated in China. The crackdown began on the night of 9 July 2015 with the detention of lawyer Wang Yu, her husband and their 16-year-old child in Beijing. Since then, hundreds of lawyers, law firm staff and family members have been subject to intimidation, interrogation, detention as criminal suspects, and forced disappearance.

Twelve lawyers and legal assistants remain under criminal detention or arrest. Most of those under arrest are suspected of “subversion of state power” or “inciting subversion of state power”. None of them have so far been allowed access to counsel, friends or family, and they are effectively disappeared. In some cases there is good reason to fear that they were put under pressure to “dismiss” their previously appointed lawyers. Some are not known to be suspected of any crime at all; and in the additional case of lawyer Li Heping, the Chinese government has so far declined to admit that he is being held at all.

We fear that without legal representation of their own free choice or other legal protections, the persons above are at high risk of torture or other cruel and inhuman treatment. Our concern is heightened by the findings of the UN Committee Against Torture, which stated on 9 December 2015 that it “remains seriously concerned over consistent reports indicating that the practice of torture and ill-treatment is still deeply entrenched in the criminal justice system, which overly relies on confessions as the basis for convictions”.

Moreover, the state-controlled Chinese media have in a series of broadcasts denounced a number of detained “suspects” as members of a crime syndicate engaging in “rights-defence-style troublemaking”, and paraded some of those detained “confessing” to wrongdoing before they have even been publicly indicted.

In order to vindicate its claim to be a responsible stakeholder in the international community and to be a respected global superpower, it is imperative that China honour its international commitments. Therefore, we respectfully urge President Xi Jinping to:

• Ensure the release of the detained or arrested lawyers and others held with them without legal basis
• Ensure access to counsel for all those detained, arrested or otherwise held as a criminal suspect
• Confirm the whereabouts of those forcibly disappeared
• Ensure that the rights of those detained, including their right to adequate medical treatment, are safeguarded
• Ensure that those detained and their colleagues will be protected from any future control measures such as: tracking and following, violent attacks, soft detention, “being travelled”, being asked to have “chats”, criminal, administrative, judicial detention, forced disappearance, torture and psychiatric incarceration.

Signatories
Dominique Attias, Vice President of the Paris Bar, France

Robert Badinter, Former French Minister of Justice and former President of the French Constitutional Council

Michel Benichou, President of the Council of Bars and Law Societies of Europe

Gill H Boehringer, Coordinator of the International Association of People’s Lawyers; former Dean of the Macquarie University Law School, Australia

Kirsty Brimelow, QC Chair of the Bar Human Rights Committee of England and Wales

Elizabeth Evatt Commissioner, International Commission of Jurists, Australia; former President, Australian Law Reform Commission; former member, UN Human Rights Committee

Tony Fisher Partner, Fisher Jones Greenwood LLP, UK

Patrick Henry, President of the Belgium Bar Association, Belgium

Helena Kennedy, QC Barrister, Doughty Street Chambers; Chair of Justice (British branch of International Commission of Jurists)

Asma Jahangir, Jurist; President of the Supreme Court Bar Association of Pakistan; founding member of the Human Rights Commission of Pakistan

Michael Mansfield, QC Barrister; professor of law at City University, London

Andrea Mascherin, President of the Italian National Bar Council, Italy

Manfred Nowak, Lawyer; former Special Rapporteur on Torture, Austria

Christophe Pettiti, General Secretary of the Paris Bar Human Rights Institute

Stuart Russell, Former Administrative Judge, Australia

Clive Stafford, Smith Human Rights Lawyer

William Schabas, Professor of International Law and Director of Doctoral Institute, Middlesex University

David J Scheffer, Former US Ambassador at-large for War Crimes Issues; Professor and Director, Center for International Human Rights, Pritzker School of Law, Northwestern University

Ulrich Schellenberg, President of the German Bar Association (Deutscher Anwaltverein)

Jean-Jacques Uettwiller, President of the International Association of Lawyers

Primary Source: Guardian UK 

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Recommended: China's Widen Crackdown on Lawyers | The Atlantic

Argentine Judge Invokes Universal Jurisdiction in Arrest of Spanish Ex-Officials

La jueza (judge) María Romilda Servini de Cubría. (Photo/Foto: Cedoc)


BUENOS AIRES — A judge in Argentina has ordered the arrest of 20 former Spanish officials accused of torturing dissidents during the dictatorship of Francisco Franco, from 1939 to 1975, renewing efforts to pursue cases of human rights abuses beyond the country’s borders.

The judge, María Romilda Servini de Cubría, said in her ruling late Friday night that she was invoking the principle of universal jurisdiction for human rights issues against the Spaniards, who include the former cabinet ministers José Utrera Molina, 88, and Rodolfo Martín Villa, 80.

The principle permits courts to investigate accusations of human rights abuses in foreign countries.

A Spanish judge, Baltasar Garzón, used the principle to indict an Argentine Navy captain who is now serving a prison sentence in Spain after he was convicted of human rights abuses in 2005. In the 1990s, Judge Garzón also tried to prosecute Augusto Pinochet, the former Chilean dictator.

Judge Servini de Cubría is seeking the former officials’ extradition to Argentina so she can question them about accusations of human rights abuses. Spaniards who claim they were victims of torture are seeking justice here because they were blocked by a 1977 amnesty law passed in Spain as a way to smooth the country’s return to democracy. They filed a lawsuit in Buenos Aires in 2010.

Excerpt, read Argentine Judge Orders Arrest of Spanish Ex-Officials

IHRC: World Can No Longer Ignore North Korea's Appalling Human Rights Record

Members of the International Human Rights Committee have long been concerned with the human rights situation in North Korea (DPRK). In 2012, the Committee submitted a proposal for a program at the London Fall 2013 meeting to explore whether human rights violations in the DPRK amounted to crimes against humanity. With the help of the Committee for Human Rights in North Korea that program occurred. David Hawk, former executive director of Amnesty International and seasoned human rights investigator, summarized his findings on the DPRK concentration camp system including years of research showing the torture, execution and other gross human rights violations which occur within the camps. His presentation was supported by satellite imagery which showed the location of and changes within the camps – even though the DPRK persistently denies their existence. 

Based on the work of Hawk and others, the situation in the DPRK earned the attention of the United Nations Human Rights Council. On February 7, 2014, it released its Report on the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (A/HRC/25/CRP.1) The Report was issued after the Council established a Commission of Inquiry in March of 2013 to investigate the human rights abuses that have occurred in the DPRK. In addition to meeting with the representatives of various governments, the Council conducted public hearings and more than 240 confidential interviews. 


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The Report documents, among other violations, mass suppression of freedom of expression, widespread discrimination, torture, forced abortion and infanticide, monopolization of food access, public executions and enforced disappearance and the maintenance of political prison camps. In its report of nearly 400 pages, the Council concluded what many working on the DPRK problem already knew, namely that human rights abuses have been occurring in that country on a mass scale for decades. The Report concludes that “Systemic, widespread and gross human rights violates have been, and are being, committed by the [DPRK], its institutions and officials. In many instances, the violations of human rights found by the Commission constitute crimes against humanity.” The Council also concluded:

The gravity, scale and nature of these violations reveal a state that does not have any parallel in the contemporary world. 

The Council propounded lengthy recommendations to the DPRK and other states, including China. In particular, the Council recommended that China cease the policy of forcibly repatriating individuals to the DPRK and that it and other states extend asylum to those from the DPRK that are within its borders. The Council recommended that the Security Council refer the DPRK situation to the International Criminal Court and adopt targeted sanctions against the perpetrators. 

For those suffering in the DPRK, the Report is a long awaited recognition by an international body of the long-standing human rights violations in that State. The International Community should not continue to ignore the human rights situation in the DPRK and should not allow the DPRK’s nuclear bluster to force attention away from these problems. The International Community should follow the recommendations of the Report and support a referral of the situation to the International Criminal Court (ICC). As a world power, China should recognize its ability to exercise leadership in this situation. It should take the first step by extending asylum to DPRK citizens who escape into China and the next by supporting a referral of the matter to the ICC. North Korean leader Kim Jong-un should break the cycle of abuse created by his grandfather and perpetuated by his father and immediately initiate reforms. 

The suffering of the DPRK population tests the strength of international law and the limits of sovereignty. It is difficult to imagine how a State could violate fundamental human rights worse than what the DPRK has done with impunity for decades. If international law cannot affect a change for the people of the DPRK, one can’t help but wonder whether it has any teeth at all. 

-Gregory W. MacKenzie, Esq.

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Gregory W. MacKenzie is a Partner at Hurley, Toevs, Styles, Hamblin & Panter, P.A. (Albuquerque, NM) and an active member of the ABA Section of International Law, International Human Rights Committee.

No One Is Safe: Abuses of Women in Iraq’s Criminal Justice System

(Baghdad) – Iraqi authorities are detaining thousands of Iraqi women illegally and subjecting many to torture and ill-treatment, including the threat of sexual abuse. Iraq’s weak judiciary, plagued by corruption, frequently bases convictions on coerced confessions, and trial proceedings fall far short of international standards. Many women were detained for months or even years without charge before seeing a judge.

The 105-page report, “‘No One Is Safe’: Abuses of Women in Iraq’s Criminal Justice System,” documents abuses of women in detention based on interviews with women and girls, Sunni and Shia, in prison; their families and lawyers; and medical service providers in the prisons at a time of escalating violence involving security forces and armed groups. Human Rights Watch also reviewed court documents and extensive information received in meetings with Iraqi authorities including Justice, Interior, Defense, and Human Rights ministry officials, and two deputy prime ministers.

“Iraqi security forces and officials act as if brutally abusing women will make the country safer,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “In fact, these women and their relatives have told us that as long as security forces abuse people with impunity, we can only expect security conditions to worsen.” In January 2013, Prime Minister Nuri al-Maliki promised to reform the criminal justice system, beginning with releasing detained women who had judicial orders of release. A year later, the brutal tactics of security forces remain essentially the same and hundreds of women remain in detention illegally.

Excerpt, read more at Human Rights Watch

Relevant Materials for International Human Rights Committee's Teleconference on the CIA and the Use of Torture to Combat Terrorism

Please note the following materials of relevance to the upcoming teleconference on the CIA and the use of torture to combat terrorism:

• Stuart Taylor Jr., "Torture:  Stop Harassing the Lawyers," NationalJournal.com (Sept. 12, 2009) 
• Testimony of David Luban, Senate Judiciary Committee, Subcommittee on Administrative Oversight and the Courts, "What Went Wrong:  Torture and the Office of Legal Counsel in the Bush Administration" (May 13, 2009)
• Senate Armed Services Committee Inquiry into the Treatment of Detainees in U.S. Custody (Dec. 11, 2008)
• ICRC Report on the Treatment of Fourteen "High-Value Detainees" in CIA Custody (Feb. 2007)
• CIA Inspector General's Report on Counterterrorism Detention and Interrogation Activities (May 7, 2004; released Aug. 24, 2009)

Torture is Illegal, Immoral and Counterproductive

by Mike Pheneger, Colonel, US Army (Ret.), a participant in the International Human Rights Committee's teleconference on the CIA and the use of torture to combat terrorism

*Please click on the title of this post to read the post in its entirety.

I was stunned to learn that the United States government had authorized the torture of suspects captured during the War on Terror. I am not naïve. As a professional soldier, I know individuals captured by the US military have been abused in the past, but abuse usually occurs at the point of capture during or immediately after a fire-fight when tempers are hot and units have sustained casualties. Some prisoners were tortured, but this was an aberration not national policy. It is important that we ensure that the record of our involvement with torture is laid bare. That is the only way to ensure that we never again stride purposely and confidently down that dark path.

Our greatest presidents rejected torture and abuse. Washington refused to follow the British practice of torturing prisoners; he believed our new nation should be noted for its humanity. Lincoln believed that “military necessity shall not permit of cruelty.”

The Bush Administration abandoned our traditions and made a calculated decision to authorize torture as a matter of national policy. Immediately after 9/11, Vice President Cheney noted that we would have to go the “dark side” to counter the al-Qaeda threat. After 9/11, the administration “took the gloves off” and approved “harsh” interrogation techniques that individually and in combination amount to torture. Alberto Gonzales advised that Geneva Convention prohibitions against torturing and abusing prisoners did not apply to al-Qaeda and Taliban prisoners.

The torture policy and its “legal” justification were developed in secret by a small group of attorneys closely associated with the Vice President. They simply assumed that “harsh” interrogations would be necessary to obtain actionable intelligence. There is nothing in the public record to indicate that anyone with actual knowledge of or experience in interrogation participated in making the decision. Service Judge Advocates were frozen out of the process because they were considered “unreliable.” When Alberto Mora, then General Counsel of the US Navy, learned the Department of Defense was about to approve harsh interrogation methods, he brought his concerns to DoD General Counsel William Haynes. After unsuccessfully trying to bring Mora on board, Haynes froze him out of the process. The torture policies were not subject to the normal interagency coordination process that is designed to weed out really bad ideas.

IHRC to Host Free Teleconference: the CIA and the Use of Torture to Combat Terrorism

On Monday, October 26, from 12:30 to 2:00 p.m. EST, the International Human Rights Committee will host a free teleconference on the CIA and the use of torture to combat terrorism. The teleconference will discuss CIA interrogation tactics and whether they constitute torture, as well as the relationship between torture and the rule of law in the context of CIA liability.

Panel members for this teleconference include:

• Mike Pheneger: Mike Pheneger, Colonel, U.S. Army (Ret.), represents Florida on the ACLU's National Board and serves on the ACLU's National Executive Committee. Colonel Pheneger spent 30 years on active duty as a U.S. Army Intelligence Officer and served multiple Vietnam tours, retiring in 1993. He also served as an intelligence staff officer at the U.S. European Command and on the Army staff. He currently teaches courses on the Constitution, the Bill of Rights, terrorism, and geopolitical issues for the University of South Florida's Learning in Retirement Program. He holds a B.A. in History from Bowling Green State University (Ohio) and an M.P.A. from Shippensburg University in Pennsylvania. He is a graduate of the U.S. Army War College, the Command & Staff Course, U.S. Naval War College, and the Military Intelligence Officer's Advanced Course.

• Hina Shamsi: Hina Shamsi is Senior Advisor to the Project on Extrajudicial Executions at NYU School of Law. Previously, Ms. Shamsi was a Staff Attorney with the National Security Project of the American Civil Liberties Union. She is a graduate of Northwestern University School of Law and Mount Holyoke College.

• Stephen I. Vladeck: Stephen I. Vladeck is a Professor of Law at American University Washington College of Law, where his teaching and research focus on federal jurisdiction, national security law, constitutional law (especially the separation of powers), and international criminal law. Professor Vladeck was part of the legal team that successfully challenged the Bush Administration’s use of military tribunals at Guantánamo Bay, Cuba, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), and has co-authored amicus briefs in a host of other lawsuits challenging the U.S. government’s surveillance and detention of terrorism suspects. Professor Vladeck earned a B.A. summa cum laude in History and Mathematics from Amherst College in 2001 and graduated from Yale Law School in 2004. He clerked for the Honorable Marsha S. Berzon on the U.S. Court of Appeals for the Ninth Circuit and the Honorable Rosemary Barkett on the U.S. Court of Appeals for the Eleventh Circuit.

• Ben Wizner: Ben Wizner has been a staff attorney at the ACLU since 2001, specializing in national security, human rights, and first amendment issues. He has been involved in numerous post-9/11 civil liberties cases, including challenges to the CIA's extraordinary rendition program; lawsuits aimed at exposing FBI and Pentagon surveillance of non-violent protestors; and suits challenging unlawful airport security policies. He has traveled to Guantanamo Bay to observe and report on Military Commission trials. Wizner was a law clerk to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. He is a graduate of Harvard College and New York University School of Law.

To participate in the free teleconference, please use the following call-in information:

Dial-in Number: 1-219-509-8111

Participant Access Code: 153417

Participants who join the call are muted but may unmute themselves during the question and answer portion of the teleconference. It is important to remain on mute while not speaking to avoid complications with feedback. The teleconference is limited to 150 participants, so please join us early to ensure your participation.

Saleh v. Titan: Political Divisions in Determining Accountability of Private Military Contractors

On February 10, 2009, the Court of Appeals for the District of Columbia Circuit heard oral argument in Saleh v. Titan, a case in which 250 Iraqi plaintiffs are attempting to hold accountable CACI International, Incorporated and L-3 Communications (formerly Titan Corporation) for allegedly committing torture, as well as other state law tort violations, in their provision of interrogation and translation services at Abu Ghraib and other prisons in Iraq. The case raises the familiar issue of accountability of private military contractors (PMCs) in the so-called war on terror. (For a good summary of the factual and procedural history of the case, see the following link from the Center for Constitutional Rights.) The panel, consisting of Judges Brett M. Kavanaugh (appointed by George W. Bush), Merrick B. Garland (appointed by Bill Clinton), and Laurence H. Silberman (appointed by Ronald Reagan), was unsurprisingly divided on ideological grounds.

On November 6, 2007, District Judge James Robertson issued a Memorandum Order granting Titan's motion for summary judgment, thereby dismissing the case against Titan, but denying CACI's motion for summary judgment and ordering a jury trial. Judge Robertson analyzed the level of control exercised by the U.S. government over the PMCs to determine whether the claims were preempted by the federal contractor defense. He concluded, "The critical differences between the ways that contract translators and contract interrogators were managed and supervised lead to different outcomes. Because the facts on the ground show that Titan linguists performed their duties under the exclusive operational control of the military, the remaining state law claims against Titan are preempted and must be dismissed. Because a reasonable trier of fact could conclude that CACI retained significant authority to manage its employees, however, I am unable to conclude at this summary judgment stage that the federal interest underlying the combatant activities exception requires the preemption of state tort claims against CACI. This does not mean that CACI may not successfully prove this affirmative defense at trial, but the task of sorting through the disputed facts regarding the military’s command and control of CACI's employees will be for the jury."

At argument before the Circuit Court, the judges questioned heavily both parties on the combatant activities exception under the Federal Tort Claims Act (FTCA), which divests district court jurisdiction over civil actions for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Judge Silberman emphasized that the exception applies to claims "arising out of" combatant activities of the U.S. military and not "claims against" the U.S. military, and therefore could include combatant activities engaged in by non-U.S. military personnel. Judge Garland countered that the FTCA is a liability statute and therefore the exceptions should be read narrowly. Judge Kavanaugh noted congressional silence about whether federal preemption applies in this context but stated that war time activity likely falls within the scope of implied preemption.

Ultimately, the decision whether to preempt liability based on the federal contractor defense depends on how the judges interpret congressional silence on the issue. Judges Silberman and Kavanaugh appear to subscribe to the idea that congressional silence supports the conclusion that preemption applies, especially in light of the Executive's primacy in war-related matters. Judge Garland, on the other hand, appears to support the conclusion that if Congress had intended to preclude liability for non-U.S. military personnel, it would have done so explicitly. As commonly transpires on the Court of Appeals for the D.C. Circuit, the outcome will likely be driven by each judge's political persuasions.