torture

logo-1People who’ve actually experienced war place greater value on regulating warfare than those who haven’t.

That appears to be one thought-provoking takeaway from People on War: Perspectives from 16 Countries, a report that the International Committee of the Red Cross released this morning.

More than 17,000 persons – in Afghanistan, China, Colombia, France, Iraq, Israel, Nigeria, Palestine, Russia, South Sudan, Switzerland, Syria (that is, Syrians in Lebanon), Ukraine, the United Kingdom, the United States, and Yemen – were surveyed between June and September countries2016, “through online, face-to-face and computer-assisted telephone interviews.”

Time and again, persons in conflict-ridden countries showed more support for international humanitarian law:

► Of them, 84% agreed that it was wrong, and not “just part of war,” to “attac[k] religious and historical monuments in order to weaken the enemy” – compared with 72% in other states.

► And 73% in conflict states agreed that it was wrong, and not “just part of war,” to injure or kill humanitarian aid workers delivering aid in conflict zones – compared with 59% in other states.

Also notable were the variation in views on torture:

► Fully 100% in Yemen said torture is wrong and not “part of war.” Percentages dropped from there. Fewer than half the persons interviewed in Israel and Palestine said “wrong”; respectively, 44% and 35%.

► As for the United States, 54% called torture “wrong.” But when the question shifted somewhat – to whether “a captured enemy combatant” can “be tortured to obtain important military information” – the percentage of persons in the United States calling that wrong dropped to 30%, the 3d lowest among countries surveyed.

The survey presented the ICRC with an opportunity to reiterate the existence and importance of laws intended to protect civilians, persons no longer engaging in combat, and persons whom conflict has put to flight. These are issues we explored in our September 23 Georgia Law-ICRC event, “Humanity’s Common Heritage: Conference on the 2016 ICRC Commentary on the 1st Geneva Convention” (posts). On the matter of torture, for example, the report states:

“Torture and all other forms of ill-treatment are absolutely prohibited by international treaty and customary law. This applies to every State and to all parties to armed conflicts. There are no exceptions, whatever the circumstances. Whole communities are impacted by the corrosive effects of torture on society, especially when it goes unpunished, generating hatred and triggering a cycle of violence. What’s more, research shows that torture does not work, as the ‘information’ that is obtained is generally not reliable.”

The full report is available here.

mendezAll who care about children and international law will want to register for “Torture of Children Deprived of Liberty: Avenues for Advocacy,” “a global online briefing” to be hosted at 12 noon Eastern Standard Time next Tuesday, May 5, by the Anti-Torture Initiative of the D.C.-based Center for Human Rights & Humanitarian Law, American University Washington College of Law.

Panelists will include:

Juan E. Méndez, American University law professor, U.N. Special Rapporteur on Torture, and author of the 2015 thematic report on children deprive of liberty, which will form the core of the discussion (credit for photo of Méndez delivering this report to the U.N. Human Rights Council last month)

Jo Becker, Advocacy Director, Children’s Rights Division, Human Rights Watch

Ian M. Kysel, Dash/Muse Fellow and Adjunct Professor of Law, Georgetown Law Human Rights Institute

► Dr. Benyam Dawit Mezmur, Vice Chairperson of the U.N. Committee on the Rights of the Child and of the African Committee on the Rights and Welfare of the Child, as well as  a law professor at the University of Western Cape in South Africa, and Addis Ababa University in Ethiopia

Registration and further information here.

800px-Koror_JailWhile most of us Stateside were making ready for last week’s Thanksgiving holiday, an overseas American was issuing a remarkable ruling against solitary confinement conditions in the South Pacific island Republic of Palau.

The November 25 order captioned In the Matter of McClain Angelino for a Writ of Habeas Corpus granted the sought-after writ. What is more, the ruling, by Associate Justice Ashby Pate, condemned the entire solitary confinement system in Palau’s Koror Jail. (photo credit) The order concluded:

‘Although the Court recognizes that its particular jurisdiction here is confined within the four corners of this particular Petitioner’s Emergency Application for Writ of Habeas Corpus, the Court strongly urges and recommends the Director of the Bureau of Public Safety, the Warden of the Koror Jail, and all those acting on their behalf, to immediately CEASE AND DESIST from the use of the solitary confinement quarters FOR ANY REASON, until such time as the facility is equipped to be operated in a humane and constitutional fashion and reviewed by a competent constitutional authority….’

Palau was a U.S. trustee state in the post-World War II period. Since achieving independence in the mid-1990s, the Republic of Palau has maintained 1 U.S. appointee among the 4 members of its the Palau Supreme Court. Pate has served in that capacity for about 2 years; I met when he spoke here at Georgia Law shortly before leaving his law practice in Birmingham, Alabama, to take up the post.

The case to which Pate was assigned as trial judge, Angelino, arose out of a complaint filed by petitioner, “a 19-year-old male” who “could easily pass for … 13 or 14” — a “child,” as the ruling calls him, “at most 5’3 tall and .. at most 120 pounds.” The petitioner had “been incarcerated off and on at least since he was 14 years old for various assaults and burglaries, as well as at least two unsuccessful escape attempts,” and had psychiatric problems that an expert witness said might’ve been exacerbated by conditions of prolonged solitary confinement.

To test petitioner’s claims, Justice Pate conducted a site visit. He pulls no punches in his 1st-person description of solitary (used, as he explains, because the jail is so old that even young, weak, tiny prisoners like petitioner can otherwise escape pretty much at will):

‘…I was in a room of near total darkness, illuminated only by the diffuse light coming from the open door behind us. There was no light bulb in the only exposed and broken socket set in the ten-foot ceiling, and the hard concrete floor was strewn with trash, what appeared to be broken glass, dank wet magazine pages, and soiled clothes. The stench of urine and feces was overpowering. There was no sink, no toilet, and no ventilation other than a small grated opening in the iron door, no bed or bedding, no light, and no drain.
‘…As the door closed, the heat and the stench combined were so overwhelming that I had to resist the urge to physically be sick. After the door closed, at least eighty-percent of the cell was in total darkness, and only a pale column of diffuse light came in through the narrow grating in the iron door, and that was only because the door to the outside remained ajar as a result of our visit.
‘…The sounds from the outside, prisoners murmuring and clanging doors, weirdly reverberated in the confined space, as they would in an echo chamber. The effect was a disorienting combination of utter sensory deprivation, at least with respect to vision and touch, coupled with a nauseating sensory overload of putrid smell and booming sound. After approximately one minute, I asked to be released.’

Pate’s ruling declared the conditions of confinement violative of Article IV § 10 of the Palau Constitution, which states:

‘Torture, cruel, inhumane or degrading treatment or punishment, and excessive fines are prohibited.’

Citing Palau case law, Pate found as the source for that prohibition the 1948 Universal Declaration of Human Rights, and so examined international human rights law. Mentioned were, inter alia, customary international law, a 2011 U.N. report, U.N. Standard Minimum Rules for the Treatment of Prisoners, commentary by the U.N. Committee Against Torture, and jurisprudence of the European and Inter-American human rights courts. His bottom line:

‘[T]he conditions in the solitary confinement quarters of the Koror Jail fail to meet even the minimum standards of internationally recognized human decency, and … flagrantly violate Petitioner’s constitutional and human rights.’

The order is an impressive national-court application of international human rights norms. Look forward to learning more of the state’s response to this condemnation of its incarceration practices.

seanross2Serendipity found my students and I rereading the unvarnished story of Philomena Lee this week, just before the Hollywood film Philomena competes in Sunday’s Academy Awards.

The film is lovely, warmed by on-screen chemistry between Judi Dench, who plays Lee, and Steve Coogan, who plays journalist Martin Sixsmith. Bits of humor between them smooth the sharp edges of Lee’s search for the child she’d given up for adoption many years earlier.

The real story is a bit more raw: “The Catholic church sold my child” reads the headline of a 2009 news article by Sixsmith, published when his book on Lee was released in England. The article recounts how a 1950s Irish family sent Lee, then 18, pregnant, and unmarried, to a Mother and Baby Home at a Tipperary nunnery. There she gave birth. There too she was compelled to put in three years’ labor, and, eventually, to give up the son she’d helped care for till he was a toddler. Sixsmith writes:

‘Early on in the search I realised that the Irish Catholic hierarchy had been engaged in what amounted to an illicit baby trade. From the end of the second world war until the 1970s, it considered the thousands of souls born in its care to be the church’s own property. With or without the agreement of their mothers, it sold them to the highest bidder. Every year, hundreds were shipped off to American couples who paid “donations” (in reality, fees) to the nuns. Few if any checks were made on the suitability of the adopting families – the only condition laid down by Archbishop McQuaid was that they should be practising Catholics.’

seanrossSilence enveloped the decades-long practice. Even International Child Law, the circa-2010 British text that we’re using in my Children & International Law seminar, makes no note of it: though these out-of-Ireland adoptions occurred just an island away, the book’s chapter speaks of 1950s intercountry adoption solely in the context of U.S. adoptions of children born in wartime Korea.

This may change, as Lee has helped found The Philomena Project, committed to push, in Ireland and in the United Kingdom, for legislation that would ease access to adoption information. (credit for undated photos, of the Mother and Baby Home where Lee was placed, courtesy of the Adoption Rights Alliance, which is working with the Project)

The Project calls for justice along the lines of the efforts begun in relation to another tragic Irish institution of the era, the Magdalene Laundries, the subject not only of a 2002 film, but also of a 2011 report by the U.N. Committee Against Torture. To date those efforts have resulted in an official state apology regarding the Magdalenes practices – though not yet the actual award of promised reparations, as a recent post in the Human Rights in Ireland blog detailed.