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.
Accountability for Sexual and Gender-Based Violence
Sexual and gender-based violence (SGBV) occurs every day in much of the world. In some countries and regions, it also occurs in the context of armed conflict or unrest – often in the form of systematic, politically-motivated harm. The former is rarely prosecuted; the latter, even less frequently. To improve responses to victims of SGBV, the clinic is collaborating with the Human Rights Center’s (HRC) Sexual Violence and Accountability Project to conduct case studies of selected countries in Africa, Asia, and the Caribbean and Latin America. In spring 2012, clinic students worked on a case study of the response to SGBV in Liberia, which included extensive legal research and a field mission to Monrovia, Liberia.
Their cross-sectoral assessment will be shared with local stakeholders working in health, law, and community-based justice. It will also contribute to HRC's comparative report on best practices in the investigation and prosecution of conflict-related sexual violence.
Bangladesh War Crimes Tribunal
In 2010, almost 40 years after the 1971 war of independence from Pakistan, Bangladesh established an International Crimes Tribunal (ICT) to hold perpetrators accountable for gross human rights violations during the conflict. During the nine-month Liberation War, Pakistani troops and Bangladeshi irregular forces committed mass atrocities including torture, summary executions, and destruction of villages as part of a scorched earth campaign. The ICT has begun domestic prosecutions of international crimes. The clinic is collaborating with the Liberation War Museum (LWM), an NGO located in Dhaka, Bangladesh, which is working to promote civil society engagement with ICT. Clinic students have prepared legal memoranda on international criminal law and practice relevant to the ICT and conducted a January 2012 workshop on these topics in Dhaka with LWM and Yale Law School’s Allard K. Lowenstein Human Rights Clinic.
Refugee Rights in the Great Lakes Region
There are more than ten million displaced people in the Great Lakes region of Africa and millions more living in an environment of current or recent conflict. Within this context, there is a recent movement toward terminating the refugee status of certain groups of refugees in the region through legal mechanisms outlined in the 1951 Refugee Convention. Terminating the legal status for different refugee populations in the Great Lakes region would have serious implications both for the individual refugees who would be subject to forced return as well as for regional security and governance. In 2012, the clinic began a collaboration with the International Refugee Rights Initiative (IRRI), a refugee and human rights organization based in Kampala, Uganda. Clinic students are providing legal analysis on the scope and proper application of international law governing when refugee status may be terminated. In addition, clinic students are developing materials for advocates on the ground to ensure that refugees receive proper adjudication of their rights and that state authorities uphold the principles and norms of refugee, human rights, and humanitarian law.
Truth and Reconciliation Commission of Canada
Canada is undertaking a truth and reconciliation commission process to address the legacy of the church- and state-sponsored residential school system for Aboriginal children that operated for more than 100 years, from 1870 until the mid-1990s. In 2008, Canada’s prime minister issued an apology to First Nation peoples for the state’s involvement in the Indian Residential School (IRS) system. The apology followed the settlement of a law suit filed by former residential-school students that resulted in a government-funded $1.9-billion compensation fund for survivors. In addition, the settlement agreement contained provisions for the state to create a Truth and Reconciliation Commission (TRC). The Commission’s mandate is to generate a comprehensive public record of the residential school system and experience. Clinic students are providing human rights research and analyses to the TRC to promote a human rights-based perspective in the commission’s work. In November, 2011, the clinic presented its preliminary research at a TRC-sponsored workshop in Vancouver, Canada.
Corporate Accountability Project
Each year, international lending institutions provide governments and companies billions of dollars to undertake development projects. Many of the largest institutions—the World Bank, the International Finance Corporation, the Inter-American, Asian and Africa Development Banks, and the United States’ Overseas Private Investment Corporation—have created accountability mechanisms to ensure that the projects are developed and implemented in accordance with environmental, labor, and human rights policy. The clinicIHRLC is working with San-Francisco-based Accountability Counsel (AC) to ensure that these accountability mechanisms provide an effective recourse for communities adversely affected by development projects.
In 2010, IHRLC students (news story available here) worked with AC, a coalition of Mexican NGO’s, and indigenous villagers to file a human rights complaint against a U.S. backed hydroelectric project. Located in Oaxaca, Mexico, the project is financed by the Overseas Private Investment Corporation (OPIC), a U.S. government agency. Conduit Capital Partners begun construction although local villagers had not been fully consulted or informed of the health and environmental impacts of the project, which threaten to contaminate local drinking water and fishing areas to produce energy for private companies. The complaint has resulted in the suspension of the 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. In 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.
Guatemalan Military Death Squad Dossier Case
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 27 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 was filed in 2006 before the Inter-American system - the human rights enforcement arm of the Organization of American States (OAS).
Since 2006, over two dozen clinic students have worked on the Inter-American litigation. They have traveled to Guatemala to meet with FMM attorneys, archival experts, and family members of the victims; prepared legal pleadings and testimony; participated in hearings before the Inter-American Commission (A video of the Death Squad Dossier hearing is available and listed under Case 12.590 -José Miguel Gudiel Alvarez and Others); and most recently traveled to Guayaquil, Ecuador to attend a hearing before the Inter-American Court of Human Rights (for more information about the hearing, please visit our news page. We expect a binding judgment from the Inter-American Court by the end of 2012.
Cambodian Justice Project
In a unique experiment, a hybrid international-national court -- the Extraordinary Chambers in the Courts of Cambodia, or ECCC -- is prosecuting the remaining top Khmer Rouge leaders – Nuon Chea, Ieng Sary, Ieng Thirith, and Khieu Samphan -- for mass atrocity crimes carried out during the Pol Pot regime of 1975-1979, which killed millions of Cambodians. The ECCC allows victims to join the criminal proceedings as civil parties, and over 2,000 are participating in Case 002. The clinic has provided legal support to Access to Justice Asia (AJA), a civil society organization that represents over 100 civil parties in Case 002.
In November 2011, the Case 002 trial got underway. The clinic partnered with AJA and the Center for Justice & Accountability to release a policy brief urging Cambodia’s UN-backed tribunal to comply with international criminal justice practice and grant reparations to civil parties. The report, “Victims’ Right to Remedy: Awarding Meaningful Reparations at the ECCC,” calls on the court to revise its legal interpretations that led to its rejection of nearly all reparations requests in the first Khmer Rouge trial. It recommends that reparations be examined at the start of the current trial and not treated as an afterthought. In spring 2012, clinic students assisted AJA in trial preparation, which included travel to Cambodia to conduct fact-finding.
During the 2009-10 academic year, the clinic assisted AJA in its representation of members of two separate ethnic minority groups: ethnic Vietnamese and Khmer Krom victims seeking to have the four defendants prosecuted for genocide. In October 2009, clinic students traveled to Cambodia to interview witnesses in preparation for their legal request, filed in December. The judges denied the victims’ request and clinic students assisted in filing an appeal. In April, 2010, the Court issued its order which reversed, in part, the initial decision and ordered that some victims join the criminal case against defendants that is expected to be tried in 2011.
In Fall 2008, clinic students wrote Cambodia’s Search for Justice: Opportunities and Challenges for the Extraordinary Chambers in the Courts of Cambodia. This paper reviews the development of the 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.
Women's Rights in Conflict/Post-Conflict Situations
In fall 2009, a working group of students and faculty at Berkeley Law, led by Professor Alice Miller, Lecturer in Residence and Miller Institute Senior Fellow, collaborated with an informal coalition of international human rights, humanitarian law, and women’s rights NGOs and independent experts looking at the issues facing women and girls in conflict and post-conflict settings. The objective of this project was to provide technical legal assistance to advocacy groups as they work to draw the attention of the CEDAW Committee, which monitors the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to these issues as it considers issuing a new General Recommendation on the scope and nature of state obligations to women in conflict affected areas.
Women's Institute for Leadership Development (WILD) and the working group hosted a roundtable at the law school's Miller Institute in April 2010 with over 20 local experts, to discuss issues facing women and girls in conflict and post-conflict settings, and considering a stronger role for CEDAW in these contexts. The roundtable based its discussions on research memos created by Berkeley Law students, including students from the International Human Rights Law Clinic (IHRLC), which focused on how girls and women’s rights can be better protected under international human rights law, in light of developments in the links between humanitarian, refugee and human rights law as well as with an eye to the role multilateral structures and funding play in mediating conflict and building peace.
In fall 2010, IHRLC students, under the supervision of Allison Davenport, Director of the Women’s Institute for Leadership Development (WILD) for Human Rights, prepared materials and served as rapporteurs at a global consultation convened by the International Women’s Rights Action Watch (IWRAW) Asia Pacific and hosted by Women and Media Collective in Colombo, Sri Lanka on the issue of women and conflict. Under the guidance of Miller and Davenport, the report of the meeting was drafted which reflects the most pressing issues advocates raised during the three days of discussion. The issues identified in the report were provided to members of the CEDAW Committee and have been integrated in to other legal and policy briefs in support of the initiative.
Colombia Accountability Project
In February 2010, the IHRLC issued a report calling on the United States to reform its policies and practices regarding the prosecutions of extradited Colombian warlords to better support Colombia’s efforts to hold these paramilitaries accountable for mass atrocities. Authored by IHRLC students, the report, Truth Behind Bars: Colombian Paramilitary Leaders in U.S. Custody, finds that the extraditions of paramilitary leaders have adverse consequences for Colombia’s ongoing human rights and corruption investigations and undermine U.S. counternarcotics efforts. The report recommends that the United States incentivize the extradited leaders’ cooperation with accountability efforts and improve cooperation with Colombian prosecutors and judges.
The extradited defendants in U.S. custody include the top commanders of Colombia’s most powerful paramilitary group, the United Self-Defense Forces of Colombia (AUC), formed decades ago to fight left-wing guerrillas. The group morphed into a powerful drug-trafficking network that massacred, forcibly disappeared, and tortured thousands of civilians, according to Colombian law enforcement. The U.S. has extradited 30 AUC members on drug-related charges.
After the report was issued, IHRLC students travelled to Washington D.C. with IHRLC faculty, to brief U.S. officials, academics, international organizations, and nongovernmental organizations. In meetings with congressional representatives and staffers, the students discussed practical recommendations to reform U.S. policy towards criminal defendants implicated in war crimes and crimes against humanity. IHRLC students were also invited to present the findings of the report at an event attended by U.S. and Colombian government officials, representatives of human rights organizations, and press. Continue reading on the Resources and Publications Page.
Since the 2008 extraditions, the IHRLC also has been working to secure the opportunity for Colombian victims of paramilitary violence to participate in U.S. drug proceedings against top paramilitary commanders. In partnership with Wilson Sonsini Goodrich & Rosati and Colombian human rights organizations, the IHRLC has filed motions on behalf of victims in U.S. courts under the Crime Victims’ Rights Act (CVRA). Under the CVRA, victims have the right to be notified of all public court proceedings, confer with prosecutors, and to be heard regarding a plea or sentence. IHRLC represents the relatives of individuals disappeared and murdered by paramilitary groups in furtherance of their drug trade. They seek to participate in criminal proceedings in order to tell their stories and obtain information from the defendants about their crimes.
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.
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.
Human Rights and the Internet
The Clinic developed 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 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.
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.