Thursday, May 15, 2008
Hamdi v. Rumsfeld...Supreme Court Decision Surrounding the Iraq War
In the spring of 2008, the United States is still very much engulfed in Iraq and the War on Terror. With it comes new legal territory and the opportunity for loopholes and a legal blackhole. The Supreme Court case of Hamdi v. Rumsfeld, decided in 2004, was one of the largest mistakes made by the American federal government during the War on Terror. Yaser Esam Hamdi, a United States and Afghanistan dual citizen, grew up in Louisiana and eventually was brainwashed to join the Taliban. Once captured by U.S. officials, Hamdi was detained without charge or due process rights, which should be awarded by the U.S. Constitution and several international law documents. This abhorrent and flagrant human rights violation is sure to leave a painful imprint on American history; effecting many prisoners of war, immigrants, and even American travelers in the future.
In Hamdi v. Rumsfeld, the Court gave the Executive Branch the power to declare even U.S. citizens “illegal enemy combatants” and detain the within the limitations of war. However, the Justices also stated detainees with U.S. citizenship must have the ability to appeal their detention before a neutral judge. With no majority opinion, eight of the nine Supreme Court justices agreed a U.S. citizen still has certain inalienable basic due process rights.
The Court’s judgment was conveyed in a plurality opinion by Justice O’Connor and joined by Chief Justice Rehnquist and Justices Breyer and Kennedy. Following the attacks of September 11th, Congress passed the Authorization for Use of Military Force Act, which allowed (according to O’Connor) the detention of unlawful combatants. However, the Supreme Court said Hamdi should have an opportunity to challenge his detention; given to him by the U.S. Constitution due process rights. Consequently, O’Connor utilized the case of Mathews v. Eldridge and the three prong test to limit Hamdi’s rights. It was determined that because of the circumstances surrounding the War on Terror and the invasion of Afghanistan, the government no longer held the burden of prood. Furthermore, Yaser Hamdi’s case was to be heard and he was to be given a Notice of Charges. However, along the same limes as the previous logic, hearsay was to be admissible in trial.
Next, Justice O’Connor advised the Department of Defense to create tribunals to determine if a detainee merited the label of an “enemy combatant” and deserved continued detention until the end of the conflict. The Combatant Status Review Tribunals were subsequently created in light of this seemingly legal blackhole. Hamdi was given attorneys already, so the Court did not comment on this right; other than he should continue to receive access to legal counsel. The only Justice to completely agree with the Executive war-making powers and the Fourth Circuit ruling was Clarence Thomas.
Justices David Souter and Ruth Bader Ginsberg concurred that Hamdi should have due process rights, but they dissented, disagreeing with the plurality judgment that the AUMF Act from Congress authorized detention of unlawful combatants. Justice Antonin Scalia and John Paul Stevens dissented as well, basing their opinions on historical precedent. According to Scalia, the government only had two paths to take.
First, Congress could suspend the right to habeas corpus, allowed by the Constitution in times of invasion or rebellion (which infallibly were not and are not occurring). Second, Yaser Hamdi must be tried under regular criminal law. Futhermore, Scalia firmly declared that the U.S. Supreme Court only had the right to determine the constitutionality of Hamdi’s case and treatment; and not give advisory opinions or legal procedural law (the creation of a military tribunal). Basically, the Court’s authority was to either release Hamdi or properly arrest him.
On one hand, Scalia is suggesting to limit the power of the judiciary to only have the responsibility of determining the constitutionality of a law. On the other hand, Scalia wants to remove Congress’s power to indefinitely hold U.S. citizens without charge. Through Marbury v. Madison, the court received the power of judicial review and the focus of Hamdi v. Rumsfeld should be on that Yaser Hamdi is a U.S. citizen and has certain natural and legal rights, provided by the Constitution.
Another point to include is that Congress did not declare war in Iraq or Afghanistan. Under the current decision, Hamdi as an unlawful enemy combatant could be held until the end of the conflict, which is the War on Terror in this case. Theoretically, detainees could be held indefinitely; a lifetime spent in Guatanamo Bay or elsewhere. These blurry, shady lines of the War on Terror have certain impact on men like Yaser Hamdi.
In addition, allowing such violations of basic rights in the United States, a world superpower, condones Middle Eastern countries to do the same to Americans or westerners on their soil. In the near future, it is likely that a U.S. citizen will find themselves in the Middle East in a prison forever with no charges; all justified by the Supreme Court decision of Hamdi v. Rumsfeld.
There were numerous Amicus Curae briefs submitted on Hamdi’s behalf, provoking several questions to the Supreme Court. The Center for American Unity, Friends of Immigration Law Enforcement, the National Center on Citizenship and Immigration, and Representatives Steve King, Sana Rohrabacher, Lamar S. Smith, Thomas G. Tancredo, Roscoe Bartlett, Mac Collins, Joe Barton, and John J. Duncan, Jr. collaborated in an Amicus Curiae brief regarding jurisdiction. They suggested that the Court look at if a person born to alien parents on a temporary work visa, who grew up outside of the U.S. and never returned, should be considered a citizen. The idea was that Yaser Hamdi declared himself a citizen of Saudi Arabia and showed loyalty to the kingdom of Saudi Arabia, so he should not be subject to jurisdiction in the Fourteenth Amendment’s Citizenship Clause of the United States Constitution. The Center for American Unity used the historical concept of how American Indians were not taxed because they did not hold loyalty to the United States government. Therefore, since Hamdi has no attachment to the United States, he should not be subject to the complete jurisdiction of America. (www.cfau.org)
In an Amicus Curiae Brief submitted by Global Rights of Washington, D.C., notions of international law came about. Global Rights is a non-profit public interest legal organization in twenty-two countries, founded in 1978 as the International Human Rights Law Group, advocating human rights and the enforcement of international covenants. International law and human rights norms should be held of greater importance than domestic law; especially in a case where Hamdi possibly could not be held under United States jurisdiction.
The Global Rights legal team said the United States government violated the Geneva Conventions of 1949, the International Covenant on Civil and Political Rights, and customary international law of the international and United Nations community. Basically, Yaser Hamdi was arbitrarily detained and held outside the paremeters of the law. Also, Hamdi had no opportunity to challenge the basis of his detention, which deprived him of due process. The legal team also said the Fourth Circuit was wrong in interpreting the ambiguity of Congress’s Authorization for Use of Military Force Joint Resolution. (www.jenner.com)
According to the Experts on the Laws of War Amicus Curae, they agreed that the Geneva Conventions were violated. The Geneva Convention Relative to the Treatment of Prisoners of War, signed on April 12, 1949, which protected captured soldiers. Detainees are to be treated as Prisoners of War until their guilt or innocence has been proved in a competent tribunal. The United States has ratified all the Geneva Conventions, therefore it is to be held as supreme law, along with reference to military obligations in the Constitution. Hamdi was indeed a soldier for the Aghani government, so he should be treated as a POW with the rights awarded to such in war. Following the Geneva Conventions protects U.S. citizens abroad, as well. The Experts on the Laws of War bring up the notion that Hamdi was a civilian caught up in the confusion of war, but either way, he should have received the basic due process rights of a POW. (www.jenner.com)
Hamdi v. Rumsfeld created such a stir in the legal community and the human rights field that the Supreme Court received a pouring of Amicus Curiae Briefs. Other briefs in favor of Yaser Hamdi were also written by The American Bar Association; The American Civil Liberties Union, The American Civil Liberties Union, The American Jewish Committee, Trial Lawyers for Justice, and Union for Reform Judaism; The Cato Institute; Former Prisoners Of War; Hon. Nathaniel R. Jones, Hon. Abner J. Mikva, Hon. William A. Norris, Hon. H. Lee Sarokin, Hon. Herbert J. Stern, Hon. Harold R. Tyler, Jr., Scott Greathead, Robert N. Pennoyer, and Barbara Paul Robinson; and International Humanitarian Organizations and Associations of International Journalists; International Law Professors. With the sheer amount of support for Hamdi, it is testament to the Supreme Court that they do not hear the public or take outside influences. However, it is also quite disagreeable that the Justices would ignore the scholarly and experienced thoughts of so many in the judicial branch and human rights field. (www.jenner.com)
Hamdi should have been prosecuted in federal court for treason and other related crimes. As a United States citizen, he should have been charged, given counsel from the start, and tried by a jury. There he would have been determined an enemy combatant or as his father says, an inexperienced aid worker in the wrong place and time. Dissenting Justice spoke about the competing demands of national security and citizens’ constitutional rights to personal liberty. Even though Hamdi was likely to have been a threat to national security, he should have been awarded the due process rights in Constitution as an American citizen. The military said the Constitution’s Suspension Clause in Article 1, Section 9, Clause 2 allowed them to suspend habeas corpus. However, habeas corpus should not have been suspended because there was no revolution or military order.
Justice Scalia quoted Blackstone in his dissent:
“Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper. . . there would soon be an end of all other rights and immunities. . . . To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government. . . .”
Allowing any American citizen, even one accused of treason, should have due process of the law because otherwise, it is likely that others who are innocent will not receive fair treatment in the future. Delivering charges should be a “minimum” right awarded to U.S. and non-U.S. citizens. A trial or tribunal with appropriate counsel and translators should be available to all accused criminals as well, but they have to be charged of something first for that to even happen. Yaser Hamdi was held for over two years at the Norfolk and Charleston Naval Brigs without charge. The point of due process rights is to follow through with them before an individual is stripped of personal liberty and happiness.
In addition to all these issues, the Supreme Court Justices made a huge mistake by breaking precedent. Even though the War on Terror is new to the American people, there are cases in U.S. history that American citizens who were enemies were still privileged to due process rights. For example, in United States v. Fricke, two American citizens allegedly spied on behalf of Germany during World War I. Being U.S. citizens, they were tried in federal court for acts of war against the United States. In States v. Robinson, a conspirator for the Germans during WWI was given military process – still more than Hamdi received at the outset. Lastly, in World War II in Ex parte Quirin, the German spies received military process and the associating citizens received criminal process. Therefore, even Hamdi who associated with the enemy, should have received criminal due process.
One day, historians and future Supreme Court Justices will look back at Hamdi v. Rumsfeld and realize the disaster and abomination of constitutional rights. Paul L. Murphy, a former Regents Professor of History and American Studies at the University of Minnesota once said that historians and scholars should have the responsibility of evaluating Supreme Court history, not attorneys and judges because they are advocates. (VanBurkleo)
Hamdi v. Rumsfeld looked at the new issue of if enemy combatants should be tried differently during wartime. The ruling was extremely unjust and only allowed President Bush and his administration to continue indefinite detention practices. Furthermore, because of the vague terms of the War on Terror, members of the Taliban are not considered prisoners of war yet. By ignoring international and domestic human rights standards, the U.S. government is inherently putting its own citizens and soldiers at risk for vile treatment in hostile nations.
The Institutionalization of American Morals and Protection of Due Process Rights
In an abomination of due process rights, police barged their way into the home of Antonio Richard Rochin, where they found discovered drugs as the accused swallowed the morphine pills, and the officers choked Rochin and shoved fingers down his throat. Among other injustices that fateful day, the actions testified in Rochin v. California were violations of the Fifth and Fourteenth Amendments. During the Supreme Court Trial, new terms and legal phrases were coined: “conduct that shocks the conscience,” the balancing test, and “decencies of civilized conduct.” Obtaining illegal evidence through physically intrusive measures and coercive tactics violates several portions of the United States Constitution. The Rochin v. California decision would affect situations in the future; everything from red light cameras to Irvine v. California just a year later. Rochin v. California was significant because it allowed the Supreme Court to take societal standards of unlawful conduct into consideration, in contrast with focusing on strict interpretation of the Constitution and precedent.
The 1952 case of Rochin v. California involved the following facts. Rochin had swallowed drug capsules to dispose of evidence, and then police pummeled him and jumped on his stomach in vain to make Rochin vomit. He was taken to a hospital where police officers instructed a doctor to administer an emetic by forcing a tube into Rochin’s stomach. Subsequently, he vomited the capsules and was convicted on the presentation of his vomit as evidence. (Rochin v. California, 342 U.S. 165 (1953), Kreimer)
The first issue was if the police procedure violated the Due Process Clause of the Fourteenth Amendment. The second issue at hand and more flagrant constitutional violation was if forcing Antonio Rochin to vomit breached the Fifth Amendment privilege against self-incrimination. In a 6 to 3 powerful decision, the Court reversed the conviction, as police did indeed breach Rochin’s right to due process of the law. Even though due process was a seemingly vague concept here, Justices claimed it prohibited conduct that shocks the conscious. Inconsequently, Justice Black mocked this approach in his concurring opinion because he disagreed with using societal notions in ruling. (Rochin v. California, 342 U.S. 165 (1953))
Looking at how the Justices determine society’s standards of civilized conduct, this case is significant because it slightly deteriorated the impartiality of the judiciary. On the other hand, the Court gained some power from the ability to create new terminology and a more activist approach towards law. It is a matter of debating Constitutional protections and infringement of basic rights versus protecting public welfare. The removal of drugs from society could be an issue in this case in hindsight; however, the shocking conduct turns the Antonio Rochin case to due process protections.
Importantly, the Supreme Court Justices took a more activist approach by coining new terms surrounding this case. The well known phrase “behavior that shocks the conscience” is the Court’s way of defining morals vaguely set in the Constitution. Laws that are “facially unjust” or “offend one’s sense of justice” must be inherently wrong. Going further than judicial review, provided by Marbury v. Madison (5 U.S. 137 (1803), the Court is left to sometimes loosely interpret the Constitution. However, in the case of Rochin, the result was largely positive and beneficial.
There is debate among judges between strict constructionists and more activist individuals; and which is more advantageous for “justice.” Before Rochin v. CA came up to the Supreme Court, in the California Supreme Court, two justices dissented from the lower court ruling. Although self-incrimination is explicit in the Constitution, the difference between verbal and physical coercion is not. The following quote explains their thoughts about self-incrimination:
“…a conviction which rests upon evidence of incriminating objects obtained from the body of the accused by physical abuse is as invalid as a conviction which rests upon a verbal confession extracted from him by such abuse. . . . Had the evidence forced from defendant's lips consisted of an oral confession that he illegally possessed a drug . . . , he would have the protection of the rule of law which excludes coerced confessions from evidence. But because the evidence forced from his lips consisted of real objects, the People of this state are permitted to base a conviction upon it. [We] find no valid ground of distinction between a verbal confession extracted by physical abuse and a confession wrested from defendant's body by physical abuse.”
The justices exclaim that there is no real, substantive differentiation in Court between verbal coercion and physical coercion by abuse. Either manner is self-incriminating and a violation of the American Constitution. The Supreme Court took an activist approach to interpret the Fifth Amendment, used personal notions of decency, and society’s standards to determine the ruling. (Rochin v. California, 342 U.S. 165 (1953))
In contrast, it can be negative for the judiciary to use outside influences in their decision-making process. Although the lower court’s decision was overturned unanimously, Justice Douglas offered the following criticism about the majority opinion. He said the decision insults the impartiality of judges and focuses on society’s standards; which goes against the Court’s responsibilities. Douglas thought it was quite “sudden” that illegally acquired evidence violated the “decencies of civilized conduct” and that it had not been an issue prior. Though Justice Douglas agreed with the decision, he felt the Court should have emphasized the criminal action of Rochin, rather than the application or procedure of law. Even though these might be arguably minor contradictions, Justice Frankfurter, who wrote the majority opinion, thought it wise to take into account both precedence and societal context. Perhaps, later Supreme Court Justices felt more comfortable to take societal context into consideration because of the Antonio Rochin v. CA decision. (Rochin v. California, 342 U.S. 165 (1953))
Many other arenas of law, politics, and society were affected by the decision. This case was noteworthy because it regarded police brutality unacceptable by society’s standards and emphasized the concept of illegal search and seizure in the Fifth Amendment. Futhermore, even if amendments were not applicable to the states through incorporation of the Fourteenth Amendment, they are still at least available. These are considerable concepts in future cases involving police beatings, racial profiling, and narcotics. (Rochin v. California, 342 U.S. 165 (1953))
The Rochin v. CA decision affected many other states for decades to come. Before, only four states (Arkansas, Iowa, Michigan, and Missouri) excluded evidence that came from physical coercion. It is certain many accused criminals after that benefited from the exclusion of their evidence. Police brutality was no longer acceptable from the Court’s perspective, even if the crime was clear. This is largely because of the public influence on the Supreme Court Justices. Throughout history, the Justices have struggled between strict constructionism and activism.
Related central cases include Boyd v. U.S. (1886), Malinski v. New York (1945), Adamson v. California (1947), and Irvine v. California (1954). From Rochin v. CA, tests were developed regarding behavior that shocks the conscious. These balancing tests have been criticized as being subjective in following cases. The balancing test in this case, which created precedent, has since brought much criticism and replaced by “bright-line tests.” Playing devil’s advocate, the balancing test can be seen as arbitrary and entirely subjective because it is a mere explanation to justify multiple factors and the importance of each. The balancing test essentially weighed the value of the evidence versus the injustice of the issues.
The Supreme Court uses several tests to aid in their decision-making. The shocks-the-conscience test, developed by the Rochin decision, attempts to control and limit arbitrary government action. Anything that cannot be justified and violates general notions of serious moral codes is deemed by the Court illegal. The Justices used Rochin as precedent in Washington v. Glucksburg to define bodily integrity. Fundamental rights and liberty interests must protect government interference of due process. (Rubin, Farrell)
Dedicated to upholding due process of the law, the American Civil Liberties Union is an organization with the objectives of protecting constitutional tights. The ACLU filed an Amicus Curiae Brief in favor of Rochin, quoting text from Haley v. Ohio. Due process requires that prosecutorial means “cannot include methods that may be fairly deemed to be in conflict with deeply rooted feelings of the community.” For all intents and purposes, the ACLU is encouraging the Justices to not just use private, personal notions but to look at morals of the general population. The Justices should not be influenced by the public. However, the Supreme Court should use rational ideology to analyze the morals of society. (www.jenner.com)
The Supreme Court Justices using society’s standards does not originate in Rochin v. California. Before Rochin ever made it to the Supreme Court, constitutional conscience was brought up in a federal court. In 1944, twenty-six Japanese-Americans (Nisei) who were held in internment camps – were drafted and refused to serve in the military. The presiding federal district judge, Louis Goodman of San Francisco, dismissed the men’s indictment because the young men were prosecuted for refusing to sacrifice their lives to defend rights they didn’t have in internment camps. Eric Muller, a Professor, wrote about the broader doctrinal significance and the judicial progression to “branding” conduct that shocks the conscience. (Muller)
Part of society’s moral conscience is a right to personal space, developed from the constitutional right to property. There is also a notion of privacy, not explicit in the Constitution, but implied, that applies to American citizens. Broadened from the right to own property, an individual has the right to privacy of their body and immediate surroundings. Antonio Rochin’s body was violated in a way and intruded by the state. Beyond the right not to self-incriminate, people have the informal right to their own bodies. This debate can follow into controversies over computer privacy and reproductive rights. Rochin v. California was significant in other contexts, as well. (Iannaccone)
According to Kenneth W. Gemmill, Professor of Law at the University of Pennsylvania Law School, Rochin is a keystone case in the constitutional protection of bodily integrity against arbitrary invasion. Basically, the Due Process Clause prohibits government officials from abusing their power in a way that shocks the conscience of the Court. In relation to recent allegations that U.S. officials use torture, the Court has looked at the case of Rochin v. California. There are general protections against government cruelty. Due process protects physical abuse, even if they are not specified in the Constitution, because it shocks the conscience of the Court. (Kreimer)
Controversy surrounds constitutional rights and the war in Afghanistan and Iraq. In the War on Terror, Rochin’s standard of conduct that shocks the conscience applies to interrogatories, expanding to also mean degrading and inhumane treatment. Torture is defined as “the infliction of intense pain to the body or mind to punish, to extract a confession…or to obtain sadistic pleasure.” Public officials use “torture lite” to interrogate detainees with sleep deprivation, extreme temperature exposure, forcing the individual into stress positions, using paranoia, threatening family members, and numerous other legal techniques.
For example, during Ramadan, a female interrogator flirted and touched a prisoner with lotion to get information from him, because physical contact between Muslim men and women during holy times is highly offensive. This conduct does shock the conscience, even though it is mostly a mentally abusive technique used on the human psyche. Although more aggressive forms of torture have been outlawed from Rochin’s standards, mental torture is common in Guatanamo Bay and other holding areas of prisoners. (Kreimer) In cases brought up about torture, the original language is used from Rochin. The Supreme Court said that obtaining evidence by methods “so brutal and so offensive to human dignity” violates the Due Process Clause of the Fourteenth Amendment. (Addicott) In court cases related to torture, Supreme Court Justices must look to 1) the U.S. Constitution; 2) customary international law; 3) private notions of liberty; and as precedented by Rochin v. CA, 4) society’s standards of civilized conduct.
A milder form of torture and violation of due process rights is use of truth serum in interrogations. When the constitutionality of the truth serum was questioned, Rochin was brought up because of the issue of self-incrimination. In the case of Antonio Rochin, the evidence should have been inadmissible in Court because it violated the Fifth and Fourteenth Amendments. However, the larger issue should be the violation of bodily integrity. Likewise, using truth serum violates mental integrity. Even though the use of truth serum is effectively self-incrimination, it is still allowed by the U.S. federal government. (Odeshoo)
Although the United States allows the military to use truth serum, it is both self-incriminating and misleading. Richard Leo discusses in a thought-provoking piece, the disadvantages of coercive interrogative techniques. New, sophisticated ways of persuasion use tools of deception, manipulation, and betrayal. Individuals being interrogated do not always understand their rights and even with advanced interrogation techniques, the rate of accurate confessions has not wavered. Antonio Rochin had similar constitutional rights violations. In aggressive interrogations, individuals are “mentally” being self-incriminated. The evidence violently removed from Rochin was “physically” self-incriminating. (Leo, Levinson)
The significance of Rochin v. California can be found in everything from torture cases to police abuse accusations to human rights standards. Antonio Rochin’s due process rights were violated and the Supreme Court used society’s standards to protect the U.S. Constitution. In this landmark case, the Justices’ impartiality was questioned because they decided to overturn Rochin’s conviction based on principles outside the Constitution and their private notions of justice. The wrongdoings of police officers and judges could then be remedied and left to American history.
Do International Human Rights Norms Matter in Domestic Law?
Mainstreaming human rights norms is difficult because at the end of the day, a nation-state will preserve its sovereignty and autonomy. There is a de facto preference of domestic constitutional law, rather than the de jure international law. It is left up to the individual government to sign a treaty, ratify it, and enforce the provisions. The responsibilities of incorporation, statutory interpretation, and remedial action are almost entirely left to the signatories. It is a particularly dangerous notion to ignore human rights norms, in respect of domestic statutes.
With human rights violations all over the world, from the United States to Sudan to Cambodia, it is undesirable for nation states to avoid a world perspective of human rights. To be isolationist to the point of dismissing human rights standards is to spit in the faces of human rights victims of genocide and those stripped of due process rights. (Steiner 1009 to 1011, Jenks)
Commonly, domestic legislation clearly conflicts with ratified international conventions; and a national judge must decide; in which he or she will have an inherent bias towards constitutional law. In addition, the “lex posterior degorat legi priori” rule is a way from national governments to override convention provisions. A treaty can be seen as “lex specialis” so that later laws are exempt. (Steiner, 1003-1004) Democracies may preach mainstreaming human rights standards in law, but in practice, some governments take matters into their own hands. This illustrates how ignoring international law in domestic law is dangerous to human rights norms.
Critics of international law often will say it is not law at all because there is no “teeth.” There is no efficient or centralized judiciary, executive, or legislative. In this sense, international law is sometimes weaker than domestic law. What makes international law binding is “opinion juris” and “pacta sunt servanda.” The sense of legal obligation and the rule that treaties must be followed are what solidify international law. (Goldsmith, 3-15) It is true that until a nation-state ratifies a treaty, it is not law.
Another problem is that member states of a treaty do not always agree about what state action counts as state practice. For example, the United States disagrees with many other European countries about what constitutes torture and physical, coercive interrogation techniques. The dangers of disagreeing on human rights standards are inconsistency, inefficiency, increased human rights violations, and lack of progression in human treatment. (Kreimer, Goldsmith, 23, Jenks)
Effectively, it is a president or leader’s commitment to a treaty that makes international and domestic law one in the same. (Goldsmith: A Theory of International Agreements, 93, Nincic) Without important officials behind a signed treaty, the document is worthless. Likewise, new treaties are more powerful when a larger, financially stable nation signs on.
In this discussion, there are issues of incorporation, statutory interpretation, the liability of public authorities, and remedial action. After a nation-state signs an international treaty, it has to ratify it to make the treaty part of substantive domestic law. For example, the United Kingdom Rights Act of 1998 incorporates only some of the provisions from the European Convention of Human Rights. A Convention is interpreted and enforced in a signatory nation by their court system. When domestic and international law contradicts, the higher courts make a Declaration of Incompatibility. The Court has an obligation to enforce the treaty until domestic legislation is reformed. Another aspect is the Courts must hold public authorities (i.e. police officers and federally funded institutions) accountable for actions in violation of the Convention (Steiner).
Using Great Britain as an example, their government takes a great deal of power from the international community, which is hazardous to human rights norms in some situations. In the United Kingdom, Parliament has the ability to make any legislation it wants because its members are democratically elected and appointed. Saying this is dangerous to human rights because it means Great Britain is declaring it has the power to ignore international standards if it so chooses (Steiner).
The United Kingdom is not the only world leader ignoring human rights. An example of defiance of international law in preference of domestic law is the case of Japan. Japanese Courts tend to ignore international human rights law, even though treaties are formally higher than statutes. In addition, the Japanese judiciary is reluctant to find faults in both domestic and international law; showing much judicial restraint and dismissing valid human rights violations claims. Since domestic law must be revised when ratifying a treaty; Japan has made significant positive change in the human rights of women and aliens. (Steiner, 1006-1008)
Yet another major nation known to abuse international law, the nation of Germany is equally reluctant to enforce international human rights law. There are several reasons and challenges as to why the Bundesverfassungsgericht, Germany’s Federal Constitutional Court, ignores human rights norm. First, customary international law and human rights standards are not included in legal education or practical training, so attorneys and judges may be ignorant. A second obstacle is the inability or difficulty in finding German translations. Last, there is the problem of many norms existing in customary law; yet not in tangible text. Furthermore, it is much easier and more practical to uphold statutory, Constitutional law over international law because there is extensive case law and literature on domestic law. The significance is in Germany’s attitude towards the European convention. In consequence, the European Court of Human Rights has found Germany to be excusing its numerous violations. (Steiner, 1005-1006)
The United States is one of the most hypocritical world superpowers regarding human rights. Often domestic and international legal procedures overlap in objectives. United States law prohibits torture and other cruel, inhuman, or degrading treatment or punishment. International human rights standards, of which the U.S. is a party to, include the Torture Convention and the International Covenant for Civil and Political Rights. Congress passed a law in 1994 increasing the penalties of American officials who commit torture, to fines and twenty years of imprisonment. In circumstances where the tortured victim is killed, the death penalty or life in prison is to be determined. (www.humanrightsfirst.org, Maynes)
There are several international treaties prohibiting action that the U.S. has taken. Article 17 of the Third Geneva Convention says that “no physical or mental torture, nor any form of coercion, may be inflicted on prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.” Even though the U.S. upholds international human rights standards in signing the Torture Convention (with specific provision), American officials have committed grave breaches of the Third Geneva Convention. The U.S. Senate ratified this treaty to make it domestic law and the courts have played a large role in interpretation of the Torture Convention. (www.humanrightsfirst.org, Maynes)
The de facto preference of domestic law rather than human rights norms is particularly dangerous concerning The Convention Against Torture and the treatment of POW’s and the like in war. For example, in the case of Hamdi v. Rumsfeld, Hamdi, an American citizen from Louisiana had moved to Afghanistan and joined the Taliban. U.S. officials captured him in Afghanistan and brought him back. He was detained without charge and stripped of all due process and human rights. The President, George W. Bush, declared him an illegal combatant by an Executive Order. Hamdi could be held without charge until the end of the war (the War on Terror could go on forever theoretically). The treatment of Yesar Hamdi violated various Geneva Convention provisions and numerous international conventions. This case is dangerous for international law because it is creating precedent and even justifications for other nations to abuse human rights of their own citizens, foreigners, and the production of legal loopholes (Lokaneeta, 2008, www.humanrightsfirst.org).
Along the same lines, extraordinary rendition and black sites conducted by the U.S. are inherently dangerous to the realization of human rights norms. Time and time again, military tribunals and seemingly limitless executive power have been defended in the U.S. Constitution. In a film titled, “The Detainees Speak,” illustrates the story of a preacher, Abu Omar, who was picked up by U.S. officials in Italy. He was tied up, diapered, and put on a Gulf Stream jet; where he was subsequently taken to a black site. Abu Omar endured fourteen months of physical, sexual, and mental torture and heard not one word of why he was being held. The man’s story and many others show how U.S. interests are held above international law regarding human rights. The United States essentially sends their dirty work to others, such as the Secret Egyptian Police for interrogation and torture. The black sites, these secret jails, existed all over the world; with one outside Kabul, Afghanistan, Romania, and Poland. George W. Bush ordered these sites to be emptied last year, but it is arguable how many of these actually were and the flooding of Guantanamo Bay. (Lokaneeta, 2008, www.humanrightsfirst.org)
In contrast to America’s human rights system, the Supreme Court of Israel ruled in 1999 that no torture or inhuman treatment has a place in democracy. With all the terroristic and personal attacks on Israeli citizens, this Judgment Concerning the Interrogation Methods Implied by the General Security Services is a testament to national security and international human rights standards by protecting citizens abroad.
Playing devil’s advocate, it is important to note the significance of domestic interest. Sovereign nations must choose their own interests over others sometimes, to sustain one’s own nation. For example, even though some U.S. government officials knew about the Holocaust and Hitler’s tyrannical rule during World War II, America stayed out as long as possible to preserve its economy and peoples. In light of this example, the human rights system was developed after the end of WWII to create an enforcement mechanism of basic rights in all sovereign nations.
Human Rights Falling Through the Cracks in a Globalized World
After the atrocities of the Holocaust and World War II, the international community woke up to the horrors of human error and the gruesome violations of what should have been standard treatment of human beings. The phenomenon of globalization has well developed human rights and has been a driving force in the United Nations enforcing the Geneva Conventions. However, inevitably, with every positive human movement, there are great challenges, and an anti-movement; in this case, the localization or regionalization of human rights. Obstacles to overcome in globalization include enclave economies, environmental damage; child labor violations; and the exploitation of weak, rural communities of the world. Conversely, the localization of human rights means lack of continuity and consistency with upholding international standards proclaimed by the new world order.
The framework of human rights in Western civilization is heavily rooted in the relationship between the individual free citizen and the state, and the responsibilities of each therein. It is a relatively new concept that individual and civil-political rights should be combined with social and economic rights. This concept is a general international approach (i.e. tribunals, the global women’s movement, and children’s rights); with much media attention; however, most governments have not integrated such in bureaucratic institutions and national policies. (Wringe, 46-47; Freeman, 37) There are institutional and cultural barriers to overcome when globalizing human rights norms.
When discussing globalization in an academic context, there are three perspectives. First, hyper-globalists believe globalization is highly impersonal, economic-based, and focuses on denationalization. However, skeptics in a second school of thought push government autonomy to balance international flow. Third, transformationalists have a more radical viewpoint, asserting that the line has been blurred between international and domestic affairs. (Steiner, 1307; LeGrain, 22-24) The first two schools of thought do not emphasize the positive change in combining legal rights with socio-economic rights.
Consequently, it is important to remember that globalization is not all positive development. There is great destruction of the environment, and also exposing weak economies to external shocks that can and have caused huge financial crises (such as in 1997) in already unstable, indebted nations. (Steiner, 1308) Marsh and Payne discuss the limitations of globalizing human rights:
“The promotion of human rights norms throughout the world by the acceptance of declarations, treaties, trade agreements, and world opinion is very important for holding nations accountable in the global community. However, such instruments do not guarantee that a nation will institute the legal protections necessary to secure human rights in the first place or to enforce previously adopted human rights laws. The spread of human rights around the world entails more than simply extending the number of states that sign treaties or incorporate human rights protections into their legal systems.”
Marsh and Payne demonstrate the need for the human element in public policy and macroeconomics in the field of human rights. This argument is a well-constructed introduction to the intersection of international human rights and political globalization.
Globalization has led to increased information and movement of goods and ideas. Human beings now have the ability to learn about experiences from strangers on the other side of the world. However, bridging the culture gap brings about new human rights evils; the largest being labor exploitation and violations. When nations first industrialize and boom economically; historically, wages fall and living conditions increase. (Rourke, 12-13)
Concurrently, economic issues, which have a significant impact on human rights progression, have improved with globalization. Taylorism, Toyotization, Fordism, Keynesianism, and the American favorite, McDonalization; are all varying forms and ideas of globalizing the Earth politically, socially, and economically. (Went, 95-96; Rupert, 41) GATT (the General Agreement on Tariffs and Trade) rounds have cut off trade barriers. On the whole, Europe began free trade policies in the late 1870’s and 1880’s. Another result is the increase in exports around the world since World War II. Finally, increased transportation routes, in the form of new roads, railways, canals, and bridges have brought new avenues for trade. (Rourke, 29-32) Therefore, globalization has spawned international community values in both trade and human rights development. When nation-states are more able to trade with one another, the parties are more likely to listen to one another, as well, and keep concern with foreign internal function and harmony of their trade partner. This is an indirect benefit of globalization on human rights.
One human rights challenge of globalization is the existence of enclave economies, particularly in Sub-Saharan Africa. European and other industrialized countries’ corporations move into destitute, rural areas and extract resources (i.e. minerals and oil) and the extremely cheap labor. This process lowers costs of goods, but ships jobs overseas to individuals who will work for almost nothing and often huge labor violation atrocities occur in this situation. Lastly, when the corporate, “Western” entity is finished sucking the area dry of natural resources, they leave the community with nothing but destruction of the environment and social destruction. (Talentino, 2007; Wolf, 188-194)
Likewise, it is a double-edged sword between economic prosper and declining social standards that indicates the advantages and disadvantages of globalization. With globalization, there have been historical international documents, such as the Universal Declaration, CEDAW, CRC, ICSECR, the Convention Against Torture, and the ICCPR. Unfortunately, the influential United States has not recognized the jurisdiction of the International Criminal Court and has not signed several important human rights doctrines. (Gilpin, 104-105)
With the rise of globalization and human rights regimes, women’s rights are finally coming to the forefront. After the European enlightenment, norms have been universalized in international politics and there are less cultural and individual differences than long ago. In the 20th century, women began to see themselves differently and injustice and victimization came out in the open (i.e. sex discrimination in Mexico’s Maquiladora sector). The women’s movement in the United States really sparked the ‘women’s rights are human rights’ debate and other movements around the world. For example, there are new organizations and councils such as WILDAF (Women in Law and Development in Africa, the RIAF/DLVF network in Africa, and the AWHRC (Asian Women’s Human Rights Council). The concept of universal human rights has led to uproar and realizations in the female global community. (Wichterich, 162-163; Steiner, 1350-1351)
Overlapping with women’s rights are rights to health (i.e. medical care and reproductive services). Regarding the right to health promoted by transnational human rights regimes, health threats (AIDS, malaria, SARS, polio, etc.) have now been publicized and globalized. According to Benjamin Meier, there are existing collective inequalities that parallel globalization with regards to the public right to health. For example, there might be new research and medical advancements in the fight against HIV/AIDS because of globalization; but there is also a realization that Sub-Saharan Africans as a whole will not have access to these benefits because of their socio-economic status. (Meier, 545-555)
Another international obstacle concerns the “War on Terror” in which the United States has committed gruesome human rights violations regarding the stripping of due process rights, water boarding, torture, and lack of dignity in POW treatment. When G-8 nations, such as the United States of America find more political capital in other nations, sovereignty is put aside as these superpowers intrude. (Lokaneeta, 2008) It is only clear now that the United States is in Iraq for oil, not terrorism, and the root of evil is indeed, money; all perpetuated by the phenomenon of economic globalization. One can see another connecting link between globalization and the human rights field here.
Concerning civil rights and liberties, human rights non-governmental organizations have been fighting for individuals and group victims of discrimination. By claiming jurisdiction, proclaiming a voice, and taking newfound responsibilities; some scholars say is NGO’s and human rights regimes are “stealing” national sovereignty and hegemony. On the other side, human rights organizations promote international consciousness and create standards for treatment of citizens. (Steiner, 1307; Sassen, XXVIII)
Next, localization (when regions and smaller communities demand independence and clout) in general and regarding human rights, is caused by several factors. First, there is often a pre-existing condition of disenfranchisement of the government by its people where there is discontent with production of legislation and protection, or lack thereof, of fundamental civil and political rights. Second, there is a tendency towards ‘local and ethnic identity,’ often enforced by urbanization and education. Third, with every movement, in this case, the phenomenon of globalization; there is an anti-movement of individuals who wish to keep their traditional culture and belonging. Last there is a ‘reluctance’ of local communities to work together because they do not want to share resources. (Steiner, 1309)
Furthermore, what occurs is a decentralization of the political functions, formerly held by the federal government. Core government responsibilities, such as road maintenance, healthcare, education, and importantly, enforcing human rights protections; are left to regional bureaucracy and village rule, possibly heading down a slippery slope of devastating infractions. (Steiner, 1309) Without a single larger authority policing action, local communities are almost left to their own devices to make integral decisions affecting individual human rights.
In contrast, though there indeed are numerous challenges in the globalizing movement; it is imperative to recognize the benefits of free trade (ref. the European Union and The North American Free Trade Agreement), increased flow of technology and goods, sharing experiences with others, and cultural toleration. (Stiglitz, 73) For example, from the mid-eighties to the mid-nineties, foreign investments of OECD countries increased from $47 billion to $360 billion. (Zwass, 139-145) Governments working together and NGO’s (i.e. Amnesty International and Friends of the Earth) influencing the human rights framework is an enormous benefit. Localization is inherent to human nature, however, it is largely a concept of the past; forever imbedded in history. Human rights are now outlined in powerful, symbolic documents; like the Universal Declaration, The Convention on the Rights of the Child, The International Covenant on Economic, Social, and Cultural Rights, CEDAW, the ICCPR, and many more.
With all these challenges, it is imperative to determine how the international community can formulate improvements and solutions through the following means: (1) new strategy of development for Gross Domestic Product, growth, and society-wide change; (2) emphasizing microeconomics and human rights in macroeconomics; (3) to reduce debt of the world’s poorest nations; and (4) increasing ethical standards in the private sector. Some improvements already instituted include the (1) the introduction of corporate ethics; (2) the Social Accountability 800; (3) the International Code of Ethics for Canadian Business; (4) the Sullivan Principles; (5) the creation of the carbon credits system; (6) the UNHCHR mainstreaming human rights; and (6) the Cologne Initiative in June 1999. (Steiner, 1312-1313; Rupert, 146)
Transnational Human Rights Regimes of the 21st century (such as the ICCPR, ICSECR, CEDAW, CRC, the Convention Against Torture, etc.) face numerous institutional challenges with mainstreaming human rights. At the top of the list are permanent damaging effects on the environment with lasting impact on human rights; use of child labor; exploitation of economically weak economies; and job outsourcing, which may increase labor violations. Regarding localization, there might be such stiff, unmoving cultural differences that Middle Eastern and African countries, heaping with traditional values, will reject pressure from the international community to conform to modern human rights standards. Inevitably the concentration of industry in cities leads to violence and poverty. Finally, globalization may be increasing the flow of information globally, but governments that abuse human rights will always attempt to stop that flow of information from the rest of the world. The duality of this phenomenon is sure to remain complex and distressing in the coming years.
Warning to the Weary...my thoughts on FGM
With the onset of globalization, the industrialized Western World is meeting a human rights battle over female genital mutilation (FGM) with what some scholars claim to be “backward” Middle Eastern and African cultures. Albeit, these practices are human rights violations; crossing the line, where outsiders must substantiate change in sovereign nations. Religious practice or not, most female circumcisions are pressured and/or forced onto minors under unsanitary conditions, maiming young girls for life, sometimes unfairly removing reproductive rights, as well. Signatories of CEDAW have pledged to protect women’s and children’s rights and should not close their eyes to the great injustices occurring to human beings.
The definition of a human rights violation (according to the United Nations Universal Declaration of Human Rights) is particularly complex here because FGM reduces equality among gender; and simultaneously, those practicing FGM claim a right to engage in cultural ritual. (Steiner) The gruesome procedure involves removing part or all or a young girl’s clitoris. In severe cases, their vaginas are sewn up, the flesh shrunk with corrosives, and their legs can be tied up for up to forty days while healing, leaving a small reed or piece of silver in place to release urine and menstrual blood.
In Sub-Saharan African culture, a woman without circumcision is not considered marriage material, because she is seen as unfit and impure. However, it is important to note that in a study of Saudi Arabian men, most would prefer a natural woman and oppose the practice. More often than not, FGM is not performed under sterile conditions, with no anesthetic. Infections are common during child birth later on and increased blood loss leading to death. Women are twice as likely to die during childbirth and three times more likely to give birth to a stillborn child. (humaniststudies.org) Lack of access to medical care and endangering the welfare of mother and child violate fundamental human rights.
Not only is FGM not performed under sterile conditions, but the argument that female circumcision is mandated by God or Allah is wholeheartedly false. An Egyptian high court ruled on the practice in 1997, stating that nowhere in the Qur’an is it validated or a right under Islamic law. Only through oral tradition has a story about Mohammed been passed down to the 21st century. Um Habibah was an ancient woman who circumcised female slaves and Mohammed supposedly told her he would allow this saying, “Cut slightly without exaggeration.” (Robinson) The haste interpretations of this passage have affected the rights of women and children throughout the centuries.
The issue at hand is if CEDAW leaders have the sovereignty to mandate laws regarding female genital mutilation; and even if there really is a human rights violation – how would laws be enforced? It is certain that this ritual would be continued behind closed doors, possibly encouraging unsanitary conditions without the monitoring of trained medical professionals. The United Nations Charter proclaims the purpose of the United Nations: “to achieve international co-operation…in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” (Steiner, 1365-1376) Regarding this proclamation, signatories have pledged to take actions to enforce this purpose. Therefore, female genital mutilation warrants action because it demeans women and violates human rights.
Female genital mutilation dates back centuries to ancient civilizations in patriarchal societies to suppress female sexuality. Even in ancient Rome, it was socially acceptable to wear rings through the labia majora to prevent premarital intercourse. Even Christians, particularly the Skoptozy sect in Russia perform the most severe FGM to ensure forever perceived virginity. (Dorkenoo, 29) There are varying forms of FGM, from circumcision (just the removal of the prepuce of the clitoris) to progressively more severe categories. The classifications include circumcision, excision (partial or total removal of the clitoris); infibulations; intermediate infibulations; and other forms involving just scarring or even a hymenectomy. (Dorkenoo, 5-8) These practices are horrific to Western culture, yet common practice in much of Africa and the Middle East.
The history of the sovereignty battle began almost twenty years ago when the World Health Organization passed a resolution urging participating governments “to adopt appropriate policies and strategies in order to eradicate female circumcision.” As part of the United Nations Millennium goals, promoting gender equality and empowering women is number three on the list. FGM is indeed a human rights violation because it breaks general principles of international law issued by the UN General Assembly’s Declaration on the Elimination of Violence against Women, which characterizes FC/FGM as a form of violence (Rahman, 19). There are also countless international law documents such as the Program of Action of the Cairo Conference and Beijing Declaration and Platform for Action; proving these are customs and international standards (Rahman, 19).
FGM violates the following human rights: (Part B of the question)
1. “The right to be free from all forms of discrimination against women.” (Rahman, 20)
(FGM includes the distinction of gender; the removal of a healthy organ without the capacity to consent; violating the Universal Declaration of Human Rights, UN Charter; Women’s Convention; Civil and Political Rights Covenant; Economic, Social, and Cultural Rights Covenant; Banjul Charter; American Convention; and the European Convention.) (Rahman, 22)
2. “The rights to life and physical integrity, including freedom from violence.”
(Previously mentioned treaties, also including the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women; Declaration on the Elimination of Violence Against Women; and the Platform for Action of the Fourth World Conference on Women) (Rahman, 24)
3. “The right to health.” (Rahman, 26)
(According to the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights; Program of Action of the International Conference on Population and Development) (Rahman, 27)
4. “The rights of the child.” (Rahman, 28)
(Children’s Rights Convention; African Charter on the Rights and Welfare of the Child)
(Rahman, 29)
5. “Right to culture.”
(Declaration of the Principles of International Cultural Co-operation; Declaration on Race and Racial Prejudice)
6. “Rights of minorities.” (Rahman, 34)
(Civil and Political Rights Covenant; Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities) (Rahman, 35)
7. “Rights to religious freedom.”
(American Convention; European Convention; Declaration on Religious Tolerance) (Rahman, 37) Even though critics might claim that the last human right would be violated by eradicating female genital mutilation; that is untrue if minors are put into danger and one’s natural human rights are infringed upon. Religious rights are not absolute. (Rahman, 38)
Some countries have taken active measures to diminish this practice. For example, in 2003, Great Britain made it illegal to take a child to another country to undergo FGM. Many immigrants were going to their homelands on vacation to have the procedure done. A special investigation unit was even formed, which has successfully intervened in over twenty “family trips.” This is a great example of a solution that westernized nations can use without overstepping sovereign boundaries. Complete prohibition is controversial because even in Sudan where infibulations was outlawed and clitoridectomy is condoned; there is still an 89% rate of severe FGM. (Rahman)
There are numerous solutions to eradicating FGM that may be possible through pressure of the international community. They include ratifying international law documents which promote human rights; enforcing laws protecting women and children; undertaking legal reform; promoting equality; and changing family law practices in FGM areas (marriage, divorce, women’s rights, etc.) Also punishing parents, creating new crime legislation, and prosecuting individuals are a step in the right direction (Part A of the question). Lastly there should be new regulatory measures that require medical care at the very least, allowing NGO’s to operate without government interference, and ensuring there are reproductive health services available to women in rural areas. (Dorkenoo, 61-71)
Also, there are numerous alternatives to female genital mutilation. A mild form of female circumcision can be performed in a medical center or even in a village home, marking the clitoris at puberty with a spiritual ceremony following. There are also teachings promoting Circumcision through Words, a primarily spiritual experience, without cutting altogether.
Finally, one must look at the three levels of guilty parties in FGM: parents; doctors; and government. It is only fair to prosecute the individuals and not prosecute the guilty governments; but rather reform government (Part A of the question). The lack of dignity and sheer immedicable wounds with FGM is abhorrent to the modern world. The disfigurement, atrocity, and relinquishing of human rights is a clear stake in the advancement of civil liberties and civil rights.
Back on Business...
Right now I'm waiting to hear back on grades...I took:
International Human Rights (17 essay final in 3 hours - ouch!)
Law, Politics, and Society
Constitutional Law: Civil Rights
Introduction to Sociology (I hate my minor...but that's another story.)
In the fall, I will be studying at the United Nations, w00t! I'm taking:
The 2 courses at the United Nations in NYC
And on campus:
International Political Economy
The Sociology of Mental Illness (and Prisons, I think?)
So now that I'm officially on summer break, I'm working M-F, 9-4...and I trying to find a unique internship for late summer/fall. I'm waiting for my business cards to come. :) The next few bloggings will probably be my semester work, focusing on international studies because I'm applying to be an editor for my campus's law journal. Comments welcomed!!!
