Panorama of the west facade of United States Supreme Court Building at dusk in Washington, D.C.
Credit: Joe Ravi via Wikimedia Commons
On February 27, 2019, the United States Supreme Court held by a vote of seven to one that international organizations do not have absolute immunity from suit in U.S. courts. See Jam v. International Finance Corp., No. 17-1011, slip op. at 2 (U.S. Feb. 27, 2019). Rejecting the International Finance Corporation’s (IFC) argument that international organizations like the IFC maintain absolute immunity from suit in U.S. courts, the Court allowed a case alleging injuries from environmental pollution caused by a power plant that was funded and supervised by the IFC to proceed in a U.S. federal court. See id. at 1-2, 5-6. The Supreme Court held that international organizations are not immune from all suits, such as when those organizations are engaged in commercial activity. See id. at 4, 15. The Supreme Court’s decision now allows the case against the IFC to move forward in U.S. Federal Court in Washington D.C. Although the Supreme Court’s decision did not make a determination on the merits of the case, the Court’s holding opens the door in U.S. courts for other potential suits alleging wrongdoing committed by other international organizations. [Earthrights]
U.S. Customs and Border Patrol at the San Ysidro crossing
Credit: Josh Denmark
Recent changes in the United States’ immigration policies have drawn fresh condemnation from human rights experts and civil society, particularly as news spread that authorities had separated approximately 2,000 children from their parents at the country’s southern border. [IACHR Press Release; OHCHR Press Release; UNHCR Press Release] These changes include automatic criminal prosecution and detention of adults – including asylum seekers – entering the United States without authorization, separation and detention of children who crossed the southern border outside a port of entry with their parents, and a directive instructing immigration officials not to recognize a State’s failure to protect victims of gang violence and domestic violence as grounds for asylum. In response to criticism earlier this month, President Trump signed an Executive Order on June 20, 2018 to detain children and parents together, but that also raised concerns because it did not address the reunification of separated families and proposed modifying time limits on detention of families. [OHCHR Press Release: UN Experts] The policy changes add to long-standing human rights concerns related to U.S. immigration policy. This post reviews 10 of the primary principles implicated. Read more
Arab Bank, the defendant in Jesner v. Arab Bank
Credit: jo.schz via Flickr
On April 24, the United States Supreme Court ruled in Jesner v. Arab Bank that foreign citizens cannot sue foreign corporations for civil damages in U.S. federal courts for serious violations of international law, such as torture or extrajudicial killings. See Jesner et al. v. Arab Bank, PLC, No. 16–499, slip op. (April 24, 2018). The case was brought against Arab Bank by victims of several terrorist attacks occurring in Israel and the occupied territories. See id. at 1. The plaintiffs alleged that Arab Bank supported numerous terrorist attacks, including those that harmed the victims, by knowingly providing financial services to terrorists, such as accepting deposits it knew were donations used to fund the attacks and pay money to the families of suicide bombers. See id. at 1-3. The plaintiffs brought their case under the Alien Tort Statute (ATS), which provides that United States federal courts may hear cases, brought by non-nationals, of tort committed in violation of international law. See id. at 1-2. The ATS is an exercise in universal civil jurisdiction, as it extends domestic judicial jurisdiction over actions that occurred abroad to foreign plaintiffs; it has historically been a means for non-U.S. citizens to seek redress for serious human rights violations committed outside of the U.S., although the Jesner decision and previous rulings limit the scope of the statute. See, e.g., Jesner, No. 16–499, slip op. at 1; Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). Notably, the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum limited the scope of the ATS to cases that touch and concern the United States with sufficient force to overcome a presumption against the U.S. extending jurisdiction extraterritorially. See Kiobel et al. v. Royal Dutch Petroleum et al., 569 U.S. 108 (2013); Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). International human rights bodies disagree over whether States must exercise universal civil jurisdiction over specific human rights abuses, mainly torture, that occurred abroad and by a foreign defendant. [IJRC] See Naït-Liman v. Switzerland [GC], Judgment of 15 March 2018; CAT, General Comment No. 3 (2012), UN Doc. CAT/C/GC/3, 13 Dec. 2012, paras. 22, 26.
Supreme Court of India
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At the end of August, the Supreme Court of India unanimously held that the Constitution of India specifically protects the right to privacy, which it concluded is inherent to constitutional guarantees of life and liberty pursuant to its Article 21 and, therefore, already exists as a fundamental freedom enshrined in the Constitution. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (2017) (India) (opinion of Chandrachud, J.), at 110, 254, 257, 262. The decision arose from a case challenging the constitutionality of the country’s system of using biometrics to identify individuals. For the case to move forward, the nine judges of the Supreme Court of India had to first determine whether the Constitution of India protects the right to privacy. See id. at 7. Affirming the right, the court’s decision was in accordance with international standards on privacy; the court confirmed that individuals have a zone of privacy limited by others’ rights and that the State may interfere with the right to privacy only through established law in pursuit of a legitimate aim and when necessary in a democratic society. See id. at 180-91, 242-46. The constitutional challenge to the biometric identification system will now resume, taking into account the privacy framework decided by the court.
According to Human Rights Watch (HRW) the ruling in the present case will not only have an impact on national policies concerning mandatory identification programs, but also other domestic issues, such as sexual orientation; the opinion explicitly states that sexual orientation is essential to privacy and identity, and discrimination on the basis of sexual orientation is counter to dignity. A challenge to India’s law criminalizing same-sex relations is also currently pending in court. [HRW] See id. at 124. The decision already overruled two prior domestic cases that held the right to privacy is not specifically protected under the Constitution of India. See Justice K.S. Puttaswamy (Retd) vs. Union of India, (opinion of Chandrachud, J.), at 5. Read more
Former Liberian President Charles Taylor at the Special Court for Sierra Leone
Credit: UN Photo/SCSL/AP Pool/Peter DeJong
On April 21, 2017, a Dutch court of appeal ruled that Dutch national Guus Kouwenhoven, acting in his capacity as president and director of two timber companies, was an accessory to war crimes including, rape, pillage, inhumane treatment, and murder committed in Liberia and Guinea between August 2000 and December 2002. See Hof ‘s-Hertogenbosch 21 april 2017, RvdW 2017, 20-001906-10 (Kouwenhoven) (Neth.) (in Dutch only). [Global Witness Press Release] The court determined that Kouwenhoven’s provision of weapons, material, personnel, and other resources to the former Liberian President Charles Taylor, in addition to his manifested intent to contribute to the commission of these grave crimes, constituted the aiding and abetting of war crimes committed by Taylor’s armed forces. The court ruled that Kouwenhoven, who assisted in the transportation and distribution of weapons, was liable both for the crimes that were directly committed with the weapons Kouwenhoven supplied and for the crimes that resulted indirectly from their use. He additionally was convicted of violating the United Nations arms embargo. See Hof ‘s-Hertogenbosch 21 April 2017 (Kouwenhoven).
The court, issuing a sentence of 19 years in prison, emphasized that with this judgment all international businessmen are put on notice that business with regimes like Charles Taylor’s can lead to involvement with and liability for international crimes. [European University Institute Blogs] While individual businessmen have been held liable for their assistance in committing war crimes in the past, such as in post-World War II trials and at least one other case in Dutch courts, civil society and academics have called for, and foresee, the increased prosecution of individuals for their assistance in the commission of war crimes through their business ties. See Trial International, Frans Van Anraat. [Global Witness Press Release] Read more
Thai fishing boat
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The International Labour Organization (ILO) recently issued recommendations to Thailand to bring it in line with anti-slavery and forced labor provisions in the ILO Forced Labour Convention in response to allegations on the use of forced labor in the fishing industry, which has also been the topic of a lawsuit in the United States and of international pressure. [Guardian: Lawsuit; Guardian: ILO] Specifically, the submission to the ILO – referred to as a representation – alleged the forced labor and trafficking in persons of migrant workers from Myanmar, Cambodia, and the Lao People’s Democratic Republic, and alleged that fishers are subject to 20-hour work days, non-payment of wages, debt bondage, physical abuse, and murder. See International Labour Office, Sixth Supplementary Report: Report of the Committee set up to examine the representation alleging non-observance by Thailand of the Forced Labour Convention, 1930 (No. 29), made under article 24 of the ILO Constitution by the International Trade Union Confederation (ITUC) and the International Transport Workers’ Federation (ITF) (2017), paras. 1, 7, 10. Additionally, the representation argues that violations in Thailand are due to a “weak legislative framework, the lack of effective complaints mechanisms, and the ineffectiveness of law enforcement mechanisms.” See id. at para. 9. The ILO committee that was set up to examine the present representation recommended improving labor inspections and legal enforcement of existing legislation, preventing and punishing illegal recruitment processes, and addressing illegal employment practices. See id. at paras. 60-68, 71-77. The ILO Forced Labour Convention requires States parties to “undertake to suppress” forced labor and to enforce penalties for engaging in forced labor. Read more