Accountability and Transitional Justice
The Clinic's Accountability and Transitional Justice program conducts advocacy and applied research to end and prevent atrocities, hold governments and their agents accountable for them, and assist societies rebuilding after mass violence. Working with a transnational network of activists, its projects have contributed to accountability on four continents.
Corporate Complicity Project
In spring 2009, the Clinic investigated potential legal avenues for holding several multinational corporations responsible for complicity in human rights violations in a country in the Middle East/Northeast Africa region. The project is a collaboration with the Genocide Intervention Network (GI-Net). Students investigated whether the companies played roles in specific incidents and analyzed complex, intertwined issues of corporate and human rights law. They briefed GI-Net staff orally and detailed their findings in five legal memoranda totaling over 100 single-spaced pages.
Canadian Universal Jurisdiction Project
In spring 2009, the Clinic helped the Canadian Centre for International Justice develop potential criminal and civil cases against perpetrators of war crimes and crimes against humanity who live in Canada or have other close ties to the country. Students compiled detailed factual dossiers on several individuals allegedly involved in atrocities, including their role in the crimes, personal and professional backgrounds, and legal vulnerability. Students also produced a memorandum analyzing the liability of certain categories of perpetrators under the international criminal law doctrines of joint criminal enterprise and aiding and abetting.
International Court Monitoring Project
The Clinic is working with the International Center for Transitional Justice and the Sierra Leone Court Monitoring Program to help human rights organizations in countries emerging from conflict to engage with internationally supported criminal courts, such as the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the International Criminal Court (ICC). Our purpose is to help those courts both to provide fair trials to those accused of the most serious international crimes and to have a positive, long-term impact on the country where the crimes occurred.
In fall 2008, two clinic students drafted a 60-page handbook to help local groups support and oversee international courts' work. The handbook is currently being edited and will be used around the world upon its publication. It will be a unique resource for those seeking to monitor and assess these courts’ contribution to transitional justice. The handbook will cover best practices in particular areas of court operations, such as victim participation and outreach, going beyond existing fair trial monitoring manuals. It also will identify lessons from previous monitoring programs on how to create and manage such initiatives.
Cambodia’s Search for Justice
In Fall 2008, International Human Rights Law Clinic students, Christine Malumphy ’10 and B.J. Pierce ‘10, prepared Cambodia’s Search for Justice: Opportunities and Challenges for the Extraordinary Chambers in the Courts of Cambodia. This report reviews the development of the Extraordinary Chambers in the Courts of Cambodia (ECCC) and analyzes problems it faces in trying leaders of the Khmer Rouge for serious crimes committed under their regime (1975-1979). It concludes that the “success of the ECCC experiment will be determined largely by how the Cambodian people and Cambodian institutions respond to the tribunal”. The analysis of the ECCC in Cambodia’s Search for Justice complements a study of public attitudes toward the court by UC Berkeley’s Human Rights Center. The Human Rights Center report, So We Will Never Forget: A Population-Based Survey of Attitudes about Social Reconstruction and the Extraordinary Chambers in the Courts of Cambodia, was released in January 2009.
Stopping Genocide and Crimes Against Humanity in Darfur and Beyond
The Clinic and the Genocide Intervention Network (GI-Net) are promoting systemic change in the U.S. government’s responses to genocide and other mass atrocities, pressing it to move beyond the inertia and lack of interest it showed in relation to Cambodia, Rwanda, and, to a large degree, Darfur. The two partners are advocating for Congressional action to reform the U.S. foreign policy process. Their proposed legislation is based on the Clinic’s research on the foreign policy process and GI-Net’s experience engaging with policymakers on a daily basis. In spring 2008, two clinic students traveled to Washington to gather information for the research and build support for reform. They met with, among others, staff of the Senate Foreign Relations and Judiciary Committees, Human Rights Watch, and the Open Society Institute and received both important insights and a warm response.
Diario Militar: Guatemalan Military Death Squad Dossier Case (José Miguel Gudiel Álvarez et al. v. Guatemala)
In 1999, a chilling document recording the fate of scores of Guatemalan citizens who were "disappeared" by security forces during the mid-1980s became public. Apparently written by Guatemala's military intelligence, the 54-page document contains photos of 183 victims and coded references to their executions. During the two decades since the disappearances, no one has been held responsible for the crimes.
Clinic students are working alongside the lawyers at the Fundación Myrna Mack (FMM), a Guatemalan human rights organization to represent family members of 30 of the victims named in the dossier. The families seek to hold the Guatemalan state accountable for the disappearances of their loved ones and the failure of the state to investigate and prosecute the perpetrators. The suit is filed in the Inter-American system - the human rights enforcement arm of the Organization of American States (OAS).
In October 2006, clinic students traveled to Guatemala to meet with FMM attorneys, archival experts, and family members of the victims. Clinic students incorporated the evidence gathered into extensive legal briefing filed before the Inter-American Commission on Human Rights in spring 2007. In fall 2007, Carmen Atkins ’08 participated in a hearing before the Commission, conducting the examination of the clinic’s expert witness, with support from other clinic students. (A video of the Death Squad Dossier hearing is available and listed under Case 12.590 -José Miguel Gudiel Alvarez and Others) Upon graduation, Atkins received Berkeley Law’s Sax Prize for Excellence in Clinical Advocacy for her work on the Diario Militar Project. In early 2008, students spent eight days in Guatemala taking depositions from family members. In October 2008, others traveled to Washington, D.C., for a hearing before the Commission on the victims right to access to state documents with information on their loved ones’ fates. The case is pending and clinic students will continue to advocate on behalf of the victims and highlight the duty of the government to uphold the human rights of its citizens.
Human Rights and the Internet
The Clinic is developing new strategies to hold non-state actors such as multi-national corporations legally, politically, and morally accountable for human rights violations. Non-state actors play a critical role in creating conditions under which human rights are upheld or violated, especially in developing countries. Ensuring these actors respect human rights obligations requires innovative approaches, because the human rights movement historically has focused on the actions of governments.
In the summer of 2005, the Clinic, in partnership with Berkeley Law's Samuelson Law, Technology & Public Policy Clinic, helped initiate a multi-stakeholder process to produce principles for companies operating in countries whose governments limit privacy or free expression on the Internet, such as China. Based on human rights standards, the principles will provide practical guidance for company decision-makers when they face laws, regulations, and policies that may violate international human rights norms. Participants in this process include Google, Microsoft, Vodafone and Yahoo!, in addition to academics, investors, technology leaders, and human rights organizations. The process is nearing completion and the voluntary principles will be published soon.
Reforming Africa's Human Rights Institutions
The African Commission on Human and Peoples' Rights has been criticized for failing to promptly and effectively address the continent's urgent human rights situations. As part of reform efforts, the Commission is adopting new rules of procedure. The clinic collaborated with Interights, a human rights organization based in London, and proposed new rules to streamline Commission procedures and strengthen protections for victims and witnesses appearing before the body. Clinic students provided an insightful analysis of the proposed rules to members of the African Commission that informed the deliberations. Students had a direct impact on the debate and discussion of the new rules this important human rights mechanism will adopt to address some of the most urgent human rights crises in the world.
Alien Tort Claims Act Policy and Research
On June 29, 2004, the Supreme Court ruled in two cases Sosa v Alvarez-Machain, 03-339, and United States v. Alvarez-Machain , 03-485, in which students in Berkeley Law's International Human Rights Law Clinic filed an amicus curiae brief. The cases before the Court stem from the 1990 kidnapping of Dr. Alvarez-Machain. Under the direction of the U.S. Drug Enforcement Administration (DEA), Alvarez-Machain was taken from Mexico to the United States by Mexican nationals in order to stand trial for his alleged role in the death of a DEA agent in Mexico. After being acquitted of the charges, Alvarez-Machain used the Alien Tort Claims Act (ATCA) and Federal Tort Claims Act (FTCA) to bring civil claims against the United States and a Mexican national who participated in his delivery to the United States.
The Court held that while the ATCA allows foreign victims to sue perpetrators of a limited number of the most serious abuses of human rights in U.S. courts, the statute did not permit Dr. Alvarez to recover for his claim of arbitrary detention. The Court also held that the FTCA prohibits claims for injuries that occurred on foreign territory.
Using firsthand accounts from victims of human rights abuses, the brief argued that the ATCA is a critical tool for victims in their pursuit of justice and was submitted on behalf of individual survivors who have filed ATCA cases, the National Consortium of Torture Treatment Programs, and the Center for Justice and Accountability.
In addition to the amicus brief, clinic students compiled every published court opinion interpreting the ATCA (as of March 2004). The Clinic's ATCA Case Compendium is the first such compilation of ATCA jurisprudence of which we are aware. The summaries synthesize the pertinent factual background as well as the legal arguments and defenses raised in each opinion. It provides practitioners, activists, journalists, and scholars a succinct reference tool regarding this important area of law.
Alien Tort Claims Act Litigation
In July 2002, a Florida jury decided in favor of plaintiffs in Ramagoza-Arce v. Garcia; Estate of Ita Ford v. Garcia and ordered former Salvadoran generals José Guillermo Garcia and Carlos Eugenio Vides Casanova to pay $54.6 million to three Salvadoran clients of the clinic who proved they were brutally tortured by Salvadoran security forces under the generals' command. Clinic students assisted the plaintiffs during the four-week trial. Berkeley Law students were featured in the documentary film about a prior companion trial involving the same defendants for the murder of four American church women in 1980, Justice and the Generals , which aired on PBS on February 21, 2002.
Bosnia Judicial Study
In January 2000, the clinic joined UC Berkeley's Human Rights Center in its Communities in Crisis Project, an interdisciplinary, multi-institutional research initiative to examine the relationship between the pursuit of international justice and local approaches to social reconstruction in the aftermath of war and genocide. As part of this work, the International Human Rights Law Clinic, the Human Rights Center, and the Centre for Human Rights at the University of Sarajevo, co-issued a report in 2001. "Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors" examined the attitudes of this important group toward the International Criminal Tribunal for the former Yugoslavia and domestic war crimes trials.
Bosnian legal professionals have been subject to much criticism from the international community, primarily on the issue of corruption. Yet it is apparent that justice for most of those who were victims of the 1992-95 war will not be achieved in The Hague but in the courts of Bosnia and Herzegovina. The ability of Bosnian courts to render justice to victims depends, in part, on a judiciary that is capable of providing fair trials. This study attempts to develop a more comprehensive understanding of the influence of pressures faced by these professionals, the impact of their own losses and the contribution of nationalist views to the problems in the judicial system. Ultimately the goal of this study is to identify interventions that build on the current efforts of court monitoring and resource development.
Centar za Ljudska Prava i Pravna Klinika za Medjunarodna Ljudska Prava, u saradnji sa Centrom za Ljudska Prava Univerziteta u Sarajevu, izdali su studiju "Pravda, Odgovornost I Socijalna Rekonstrukcija U Bosni I Hercegovini: Studija O Bosanskim Sudijama I Tuziteljima Na Osnovu Intervjua," koja se bavi pogledima ove vazne grupe prema Medjunarodnom Krivicnom Tribunalu za bivsu Jugoslaviju i lokalnim sudjenjima za ratne zlocine. Bosanski pravni strucnjaci su predmet velikih kritika od strane medjunarodne zajednice, prvenstveno po pitanju korupcije. Medjutim, ocigledno je da pravda za vecinu zrtava rata od 1992-1995 nece biti dosegnuta u Hagu, vec u sudovima Bosne i Hercegovine. Mogucnost sudova Bosne i Hercegovine da omoguce pravedan ishod za zrtve zavisi, dijelom, od sudija koji su sposobni da pruze pravedna sudjenja. Ova studija je pokusala stvoriti sire razumjevanje o uticaju pritisaka sa kojima su ovi strucnjaci suoceni, o uticaju njihovih licnih gubitaka, i o doprinosu nacionalistickih pogleda ka problemima u sudskom sistemu. Konacno, cilj ove studije je da identifikuje intervencije koje proizilaze iz trenutnih napora za nadgledanje sudstva i razvitka sredstava. Da bi ste pogledali studiju na BiH jezicima, pritisnite ovdje Bosnia.