migration

What materials to give my Refugee & Asylum Law students in preparation for visits from experts in connection with our “Children & International Criminal Justice” conference this week? How to link the work of the International Criminal Court to our current study of how nation-states comply (or fail to comply) with obligations they assumed by ratifying the 1951 Convention relating to the Status of Refugees and/or its 1967 Protocol?

raadI might have focused on the refugee as a stakeholder in the work of the Court, an important topic given that many of the world’s 50-plus million forced migrants have fled armed violence or its consequences.

Instead, I turned to a specific legal problem: the cases of 3 Congolese nationals permitted to enter the Netherlands solely to testify for the defense in the Katanga and Ngudjolo trial. When that role came to an end, they sought asylum rather than return to the Democratic Republic of the Congo. Earlier this year, they were returned following a judgment against one of them issued by the Raad van State, the Netherlands’ Council of State.

One problem: I could only find that judgment in Dutch (above).

Problem solved: I ran it through Google Translate and came up with an English version of The Alien and the Secretary of State that, with a bit of tweaking worked well as an English-language version, the basis for a great discussion. In case it’s of use others, that  version, along with a couple contemporary news releases, is available here.

NorthKoreaWeb1Children figure prominently in the parade of horribles to be found in a U.N. commission’s just-published report on North Korea.

Though sadly not surprising, this is noteworthy, not the least because the country is a charter member state of the 1989 Convention on the Rights of the Child. The report, by a commission composed of Michael Kirby of Australia, Sonja Biserko of Serbia, and Marzuki Darusman of Indonesia, demonstrates that North Korea operates far from the objective of that near-universal treaty.

By way of example, ¶ 21 of the 36-page Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, declares:

‘The State operates an all-encompassing indoctrination machine that takes root from childhood to propagate an official personality cult and to manufacture absolute obedience to the Supreme Leader (Suryong), effectively to the exclusion of any thought independent of official ideology and State propaganda. …’

(See also ¶ 81. The Report, which holds the U.N. document number A/HRC/25/63, is one of several documents released yesterday and available here.) (Credit for map © 2010 William Cornforth/Human Rights Watch, which accompanies a Human Rights Watch 2012 media release subtitled “New Testimonies Say Even Children Must Work or Face Detention Camps”)

Elsewhere the Report chronicles specific harms to children:

► Taking note of the regime’s effort to keep cities like the capital “‘pure’ and untainted,” the commission wrote at ¶ 41 (see also ¶ 89(j)):

‘[T]he large number of street children migrating clandestinely to Pyongyang and other cities – principally in search of food – are subject to arrest and forcible transfer back to their home provinces, experiencing neglect and forced institutionalization on their return.’

► The Report further observes, at ¶ 42 (see also ¶ 90(f)), that women who have fled to China and are forcibly repatriated suffer many human rights violations; for example, because of the regime’s “racist attitudes towards interracial children of Koreans,” repatriated women found to be pregnant

‘are regularly subjected to forced abortions, and babies born to repatriated women are often killed.’

► Violations persist even if the mother – who may have been trafficked to China “for the purposes of exploitation in forced marriage or concubinage, or prostitution” – remains in China. Her children, the Report explains at ¶ 42  (see also ¶ 90(e)), are among the estimated 20,000 who suffer a particular predicament:

‘These children are deprived of their rights to birth registration, nationality, education and health care because their birth cannot be registered without exposing the mother to the risk of refoulement by China.’

► As for children who live in North Korea itself, ¶ 47 of the Report states that commissioners are

‘particularly concerned about ongoing chronic malnutrition in children and its long-term effects.’

Foreign aid has not eased their plight, because (¶ 50):

‘The State denied humanitarian access to some of the most affected regions and groups, including homeless children.’

► Children were among the more than 200,000 persons from other countries whom the Report says (¶ 64; see also ¶¶ 67, 70-71) that regime subjected, over the decades since 1950, to

‘systematic abduction, denial of repatriation and subsequent enforced disappearance ….’

Having catalogued such violations in this Report and accompanying documents, the commission listed numerous recommendations. The media have focused on the recommendation for a U.N. Security Council referral of the situation to the International Criminal Court (¶¶ 87, 94(a)). Given North Korea’s nonparty status and close relation to China, a veto-holding permanent Security Council member, that seems less than a nonstarter.  But any reader of the commission’s account can only hope that policymakers will find some interim means to effect change and accountability in North Korea.

zaOfficials have taken a step toward making it easier for refugees of armed conflict to find refuge in the United States.

Accounts of the world’s too-many civil wars often include astronomical numbers of persons in flight: nearly half a million in Central African Republic, more than 2 million in Syria, and so on. Precious few such refugees have found safety in the United States – only 31 Syrians last year, though camps like Zaatari in Jordan (right) house hundreds of thousands. (photo credit)

This is due in part to 8 U.S.C. § 1182, which bars anyone deemed to have given material support to listed armed or terrorist groups. The list of such groups is extensive. So too the list of what U.S. officials have deemed acts of “material” support – by way of example, an act as unavoidable as “pay[ing] a toll or tax to a terror group to pass through opposition-occupied territory.” Some 3,000 persons already in the United States are said to fear ouster based on this bar, which has prevented untold others from entering the country.

But the list of proscribed acts was trimmed last Wednesday, when a joint notice was published in the Federal Register. The notice stated that the heads of the U.S. Departments of Homeland Security, Justice, and State had determined that the terms of Section 1182

‘bar certain aliens who do not pose a national security or public safety risk from admission to the United States and from obtaining immigration benefits or other status.’

Accordingly, the three Secretaries announced they would exercise their discretion to exempt from the statutory barrier persons “who provided limited material support to” a listed organization or one of its members. It defined “limited material support” as:

  • “certain routine commercial transactions or certain routine social transactions (i.e., in the satisfaction of certain well-established or verifiable family, social, or cultural obligations),”
  • “certain humanitarian assistance, or”
  • “substantial pressure that does not rise to the level of duress ….”

Among other caveats in the Secretaries’ Notice of determination, such acts must have been performed absent any intent to aid terrorist activity.

The notice is not explicit on the extent to which the new ease-up might apply to certain refugees mentioned on page 1 of this 2007 report; that is, children who, in time of civil war, were forced to provide an array of services to rebel or terrorist groups.

The digital release of U.S. military records a few years back helped me fill in an incomplete family story. This Veterans Day seems a good time to reprint my resulting blog post:

In August 1900 a man ended a trans-Atlantic voyage at New York Harbor. He was 25, a farmer, and spoke only Italian. He’d a vague plan to settle in Pittsburgh, but no money to get there.
brunicopyWithin months the man was in yet another country, serving in the Army of Occupation Military Government of Cuba, by which the United States ruled a spoil of its 1898 victory in the Spanish-American War. By 1902, the year formal control of all but a base at Guantánamo Bay was ceded to Cuba, the man was managing a hotel not too far from Yale College.
He’d received U.S. citizenship for his service.
He might’ve helped rebuild after the ’06 earthquake in San Francisco.
The 1910 census found him in Denver, where a widow rented him a room. He’d married an American 15 years younger than he, the Buffalo-born daughter of immigrants from Poland. They’d a son, whom the census-taker guessed was somewhere between 6 and 12 years old. In 1913 another son was born, in Hartford, Connecticut.
Within years the man was alone again, waiting tables at the Shoreham Hotel in Washington, D.C. His wife kept house for an old-line Connecticut family, with whom she and the eldest son, a “boarder,” lived. Records place the younger boy with neither parent. He was to be found, rather, with a middle brother, whose birth in New York available records overlooked. (It’s said that a 4th child had fallen ill and died, without benefit of Last Rites because a priest refused a sibling’s plea that he leave his dinner to minister to a poor family.)
The 1920 census lists the younger boys, ages 7 and 8, as “inmates” at the Washington Emergency Home for Children. Both already could read and write English; indeed, while growing up at the D.C. orphanage, the middle son would win a medal in an interschool track and field contest, the American Legion award for leadership, and a leatherbound copy of Kidnapped inscribed with academic praise from his principal.
Secondary education was, of course, out of the question, and so by age 19 the middle son was waiting tables in Philadelphia. His mother having died from diabetes just before doctors learned to treat the disease with insulin, he lived with his father and eldest brother. The youngest brother was nowhere to be found.
Eventually the middle child would move to Chicago. He and his wife, both members of labor unions, would raise a family of their own. They would see grandchildren attend universities. One of those grandchildren, I have stayed on business at the same hotel where I now know that my great-grandfather, now buried in a V.A. cemetery in Milwaukee, worked as a waiter.
This is a story of military service, for it emerged quite suddenly from discovery of Angelo Bruni‘s draft registration card, pictured below — registration not for the Spanish-American War era in which he served, but rather for World War I, which his country of choice expected him, at age 43, to be ready again to serve. It is a story of immigration, of the opportunities and limitations that 20th C. pioneers, if you will, confronted in a new land with unfamiliar customs and culture.
Columnist David Brooks recently wrote of a “Catholic Boom,” attributing successes of today’s generation to some essential evolution among Roman Catholics of European ancestry. Even making the dubious assumption that all members of this group indeed have succeeded, the story just told points to far different reasons for that success. It points, 1st, to the hard-scrabble tenacity with which newcomers worked to overcome odds. It points as well: to the end of prejudices against ethnic Catholics, such as the stereotype that equated Italians with gangsters; to a GI Bill that rewarded those who served in uniform not only with citizenship, but also with the means to better themselves after service ended; to the expansion of public education institutions at which they and their descendants could excel; to advances in medicine that made it less likely that they would die young of treatable diseases; and to the enactment of hard-won laws that secured for hard-working people a living wage and a pension should they live a long life.
In pointing to those 20th C. factors for success, this story points too to a 21st C. framework for treatment of those who seek opportunity in the United States of America.

Coat_of_arms_Holy_See.svgA Reuters article this week opened with a curious lead sentence:

‘Human trafficking is a crime against humanity that should be recognized as such and punished by international or regional courts, a Vatican study group said on Monday.’

The article proceeded to quote from a statement issued following a 2-day Vatican conference:

‘ “International or regional courts … should be created because human trafficking in an international phenomenon that cannot be properly prosecuted and punished at the national level.”‘

What’s curious is the omission in the article (though perhaps not at the seminar) of the fact that some acts of trafficking already fall within the jurisdiction of a permanent international court.

To be precise, Article 7(1)(c) of the Rome Statute of the International Criminal Court, adopted in 1998 and in force since 2002, expressly lists “[e]nslavement” as a crime against humanity that the ICC may prosecute, “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” In turn, Article 7(2)(c) states:

‘ “Enslavement” means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children ….’

The concern for migrants that Pope Francis I has voiced, and that this new Vatican report echoes, is laudable. And the Vatican, the U.N. non-member state called the Holy See, is party to scores of treaties. (credit for image of Holy See’s coat of arms) It remains to be seen whether this status and that stated concern combine to prompt the Holy See – which has a past with the ICC (here and here) – to consider joining, submitting to the jurisdiction of, and fully supporting, the court.

Stock_clip_image002_1Delighted to read that Margaret Stock has been named a 2013 MacArthur Fellow. I first met Margaret when she was on the law faculty at the U.S. Military Academy at West Point. After a decade there, she retired from the Army, withthe rank of Lieutenant Colonel, and took up the practice of law in Alaska. For the last several years she’s been an outspoken advocate for the rights of immigrants in the U.S. military, writing a book on the subject and contributing commentaries to IntLawGrrls blog and other media. Her recognition for this important work, in the form of a $625,000 grant, is well deserved.

¡Brava!

lampedusa“Lampedusa” long had been a household word among persons who follow human migration, though it was unknown to most others. Yesterday, the new pope changed that.

Lampedusa is a tiny island, about a tenth the size of the District of Columbia. And it’s just 70 miles from Tunisia – as close as Italy gets to Africa. (credit for map showing island inside box) For years, that geography’s made it a prime destination for northbound migrants. Yet as IntLawGrrls posts by Jaya Ramji-Nogales and Anna Dolidze have discussed, Europe seldom has welcomed the waves of persons who’ve set sail for Lampedusa. Stories of push-backs on the high seas and of watery deaths in unseaworthy vessels have been all too common, and yet largely ignored.

Attention came yesterday when Pope Francis I sailed south to Lampedusa. He arrived just hours after a boatload of 166 Eritrean migrants had landed at the same port. The Roman Catholic leader, himself the child of emigrants, cast into theVatican Pope Migrants Mediterranean a wreath in remembrance of migrants who perished at sea. (photo credit) Then he disembarked and celebrated a Mass. His homily (Italian video here; full English translation here) welcomed “the dear Muslim immigrants that are beginning the fast of Ramadan,” then cited the Old Testament and a centuries-old Spanish play in the course of urging resistance against what he called “the globalization of indifference” to the suffering of others – of “the people who were on the boat … the young mothers carrying their babies … men who wanted something to support their families ….”

Transmitted globally by reporters who’d made the journey, the pope’s message touched land not just in Italy, but on all the shores to which humans migrate.