Resources and Publications
New Report Urges Reparations for Victims of Khmer Rouge Regime
By Andrew Cohen
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A timely report co-released by the International Human Rights Law Clinic (IHRLC) urges Cambodia’s UN-backed tribunal to comply with international criminal justice practice and grant reparations to victims of the brutal Khmer Rouge regime.
The second trial of Khmer Rouge senior leaders for genocide, war crimes, and crimes against humanity—which claimed an estimated two million lives from 1975 to 1979—began last week before the Extraordinary Chambers in the Courts of Cambodia (ECCC). More than three decades after the killing fields, and with
the three accused leaders in declining health, victims who have joined the criminal proceedings as civil parties are increasingly concerned that justice may not be served.
The ECCC is a new hybrid court with both Cambodian and international judges. It’s the target of the new report by Berkeley Law students Saira Hussain ’13, Shayla Johnson ’13, and Peggy Li ’13 called “Victims’ Right to Remedy: Awarding Meaningful Reparations at the ECCC.” The report is co-authored by the NGOs Access to Justice Asia and the Center for Justice & Accountability.
“Victims demand and deserve the acknowledgment and dignity that reparations measures can provide,” said IHRLC Director Laurel E. Fletcher. “The court should establish a generous framework for these victims to state what redress means to them. It’s time for the court to empower victims.”
“Victims’ Right to Remedy” calls on the court to adjust the 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. More information about the report, in a recent op-ed co-written by Fletcher, is available here.
Hussain, Johnson, and Li worked with Fletcher and lawyers in Cambodia, California, and Singapore. Their research calls attention to a lack of clarity regarding reparations standards at the court, which the report finds “impinges on the rights of civil parties and creates uncertainty in Cambodian and international law.”
“It’s unfathomable that 32 years later this is the start of people getting justice, yet most media coverage of the court doesn’t mention reparations,” Li said. “It’s shocking what hoops these victims must go through just to seek reparations, and more people need to know about it.”
A Call for Justice
This could be the last trial of the Khmer Rouge leaders, largely because of their age and health. Consequently, it may represent the only chance victims have to claim redress against any perpetrators.
Nevertheless, the court has been reluctant to exercise its powers and provide meaningful reparations to the nearly 4,000 civil parties participating in the trial. In its previous case, the court cited legal barriers and procedural hurdles that other international courts have circumvented easily.
“The ECCC is applying a narrow standard that has denied legitimate requests that other courts have recognized,” Johnson said. “We’re trying to push the court toward compliance with international standards and show that it has ample authority to grant non-monetary remedies to victims.”
Some of those potential remedies include building museums and monuments to commemorate the victims, providing educational support for children of survivors, and offering mental health services. The ECCC can also award specific redress for elderly, vulnerable, and low-income victims and order medical care for survivors who suffered harm as a result of the genocide.
Reparations constitute a new and emerging area in international human rights law. Only courts in Latin America and Europe have dealt with and resolved reparations issues effectively; the ECCC is the first Asian court to confront them.
Therefore, the report recommends convening a group of experts to create a mechanism for handling reparations. This independent body would receive and administer donor funds to implement a transparent, accountable reparations system.
“Our report explains the reasoning behind reparations and why they’re so important for Khmer Rouge victims and the future of international law,” Hussain said. “The ECCC has an ideal opportunity to make its mark and be an example for both Asian and hybrid international courts that face similar challenges. What better time than this?”
Press Stories
KR Victims Face Rocky Road to Reparations, Phnom Penh Post 11/18/11
Opinion: More to Justice Than a Trial, Phnom Penh Post, 12/06/11
Women's Rights in Conflict / Post-Conflict Situations
Beginning in the Fall 2009, the Clinic began working with Professor Alice Miller and advocates from the International Women’s Rights Action Watch (IWRAW)—Asia Pacific and a coalition of NGOs from around the globe to focus the attention of the Committee of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) on the rights of women and girls living in conflict/post-conflict situations. The objective of this project is to provide technical (legal) assistance to advocacy groups' as they work to support the CEDAW Committee's consideration of a new General Recommendation on the scope and nature of state obligations to women in conflict affected areas.
To help ground the initiative, IHRLC students consulted with Colombian women's rights organizations to draft a case study on the experience of women affected by Colombia’s armed conflict. The case study identifies opportunities for the CEDAW Committee to clarify the scope and content of State obligations through a General Recommendation and will serve as model for other groups interested in drafting a case to highlight issues faced by women in their countries.
In the 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 IWRAW-AP 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, drafted the report of the meeting 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.
A link to the Report of the Global Consultation on the Application of Women’s Human Rights Framework on the Issues of Women Affected by Conflict is available here.
Deportation of Lawful Immigrant Parents Harms Well-Being of U.S. ChildrenNew report finds 88,000 U.S. citizen children lost lawful immigrant parent within ten year period
New report finds 88,000 U.S. citizen children lost lawful immigrant parent within ten year periodBerkeley, CA—March 31, 2010…The U.S. has deported the lawful immigrant parents of nearly 88,000 citizen children in just a decade, according to a new policy brief released today from the University of California, Berkeley, and the University of California, Davis law schools. The brief, In the Child’s Best Interest?, finds that forced removal of lawful permanent resident parents (or green card holders) convicted of relatively minor crimes can lead to psychological harm, behavioral changes, and disruptions in the health and education of tens of thousands of citizen children.
In the Child’s Best Interest?, based primarily on new analysis of data provided by the U.S. Department of Homeland Security, is a joint project of the International Human Rights Law Clinic and the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at the University of California, Berkeley, School of Law; and the Immigration Law Clinic at the University of California, Davis, School of Law.
Drastic revisions to U.S. immigration laws in 1996 have led to large numbers of deported lawful permanent residents (LPRs) who now make up nearly 10 percent of immigrants deported from the U.S. More than 68 percent of this group is deported for minor crimes, such as non-violent drug offenses.
The revised immigration laws now severely restrict the ability of judges to consider the impact of deportation on children. In the Child’s Best Interest? recommends restoring judicial discretion in all cases involving the deportation of LPRs with U.S. citizen children.
“As Congress considers immigration reform, it’s time to focus on how the current system tears apart families and threatens the health and education of tens of thousands of children,” said Aarti Kohli, director of immigration policy at Berkeley Law’s Warren Institute. “This report makes a strong case for restoring judicial discretion so immigration judges can weigh the best interests of children when deciding whether to deport a parent.”
The report found that, in the decade between April 1997 and August 2007, the U.S. deported nearly 88,000 lawful permanent residents for mostly minor criminal convictions. These deported legal residents had lived in the U.S. an average of 10 years, and more half of them had at least one child living at home. Approximately 50 percent of the children were under the age of 5 when their parent was deported.
In 1996, Congress also significantly broadened the category of crimes considered an “aggravated felony.” Although this category initially included only the most serious offenses, it now includes non-violent theft and drug offenses, forgery, and other minor offenses, many of which may not even be felonies under criminal law. Lawful permanent residents convicted of an aggravated felony are now subject to mandatory deportation and other severe immigration consequences.
“Parents who are deported on the basis of criminal convictions are being punished twice for the same mistakes,” said Raha Jorjani, clinical professor at the Immigration Law Clinic at UC Davis. “Even after successfully completing their criminal sentences, they are subject to penalties within the immigration system—and risk losing their families. It’s often the children in these families that suffer the most. This nation should take into consideration the impact on families of uprooting individuals with such strong ties to the U.S.”
Families interviewed for the brief reported negative health impacts, such as increased depression, sleeplessness, and anxiety. Children also reported plummeting grades, increased behavioral problems, and the urge to drop out of school to help support the family.
The policy brief compares U.S. immigration policy to international standards that more adequately address potential family separations in deportation hearings.
“The rights to health and education are firmly entrenched in international human rights law, and nearly every major human rights treaty recognizes the need for special protection of children,” said Laurel Fletcher, director of the International Human Rights Law Clinic at Berkeley Law. “The U.S. should consider revising its policy to mirror European human rights standards, which permit judges to balance a nation’s security interest with the best interests of the child when considering deporting a parent.”
In the Child’s Best Interest? makes a number of recommendations to U.S. policymakers, which include:
- restoring judicial discretion in cases involving the deportation of lawful permanent residents who have U.S. citizen children;
- establishing clear judicial guidelines in these family deportation cases;
- reverting to the pre-1996 definition of “aggravated felony”;
- collecting data on U.S. citizen children of deported lawful immigrant parents to gain fuller understanding of impact of deportation laws.
Report criticizes increased deportation of legal immigrant parents, Los Angeles Times, 04/01/10
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New report calls on US to cooperate with Colombian probes of mass atrocities, corruption
Berkeley, CA—February 16, 2010 Colombian drug lords extradited to the United States must be held accountable for their role in the mass atrocities that have devastated their country, according to a new report, Truth behind Bars: Colombian Paramilitary Leaders in U.S. Custody. The report, by the International Human Rights Law Clinic at UC Berkeley School of Law, calls on the U.S. government to give Colombian authorities access to these extradited drug lords for their own criminal investigations. By supporting Colombia’s human rights probes, the U.S. may help bring an end to that country’s cycle of violence, according to the report.
The 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.
As part of their efforts to seize control of land and drug routes, extradited paramilitary leaders allegedly targeted trade unionists and other civilians whom they perceived as threats. Before extradition, the AUC leaders had begun to disclose information about these and other crimes as part of a Colombian demobilization program. It offered legal leniency and public benefits to any paramilitary member in exchange for an agreement to disarm, forfeit assets, and confess. The leaders’ testimony soon revealed not only details about mass atrocities, but also of political corruption, rigged elections, and collusion with elected and military officials.
The disclosures led to criminal investigations of high-level politicians. However, since the U.S. extraditions, the paramilitary leaders’ cooperation with Colombian investigators has effectively stopped.
“U.S. policymakers have a moral and legal responsibility to cooperate with Colombian law enforcement to solve these horrific crimes,” said Roxanna Altholz, associate director of the International Human Rights Law Clinic. “The paramilitary leaders in U.S. custody are seeking agreements with the Department of Justice in order to lower their sentences,” she said. “It is up to U.S. government prosecutors and courts to incentivize them to talk about the murders, kidnappings, and disappearances committed in Colombia.”
The plea agreements that are publicly available between the Department of Justice and extradited defendants do not contain incentives for them to cooperate with Colombian law enforcement or to reveal the details of their human rights crimes. Frustrated by blocked investigations, Colombia’s Supreme Court has halted future extraditions of demobilized paramilitaries to the United States, undermining U.S. counternarcotics efforts.
The United States has invested hundreds of millions of dollars in Colombia’s legal system with the aim of creating an effective partner for counternarcotics efforts, says Altholz. Yet free trade negotiations between the U.S. and Colombia have stalled over concerns about Colombia’s failure to investigate the murders of trade unionists.
“If the U.S. actively supports Colombian accountability measures, Altholz says it can help that country strengthen its rule of law, address unsolved murders of Colombians, and disband its violent drug cartels.”
Two Berkeley Law human rights clinic students — Noah Smith '10 and Gretchen Gordon '11 —wrote the new report and conducted extensive legal research under Altholz’s supervision.
“Colombian prosecutors and judges face limited access to defendants in U.S. custody,” said Smith, “which has stymied that country’s efforts to expose political corruption and collusion between elected officials and the paramilitary.”
"The U.S. is missing a rare opportunity to help dismantle the paramilitary drug cartels that have had a stranglehold on Colombia for decades," said Gordon. "Cooperation with Colombian accountability efforts would not only promote justice for human rights victims, but would also help to combat narco-terrorism and root out corruption.”
Truth Behind Bars recommends that the U.S. reform its policies and practices regarding criminal prosecutions of extradited Colombian paramilitaries by taking the following steps:
• Create an effective procedure for judicial cooperation with Colombia. Provide timely, consistent, and reliable access by Colombian prosecutors, judges, and victims to extradited paramilitary commanders. Share information obtained by U.S. law enforcement from extradited paramilitaries.
• Incentivize extradited paramilitary leaders to disclose details about all their crimes and reveal the identities of their accomplices in the Colombian military, government, and national and foreign businesses. Condition sentence reductions or other benefits achieved through plea-bargaining on effective cooperation.
• Initiate investigations for torture committed by paramilitary leaders in U.S. custody.
For news interviews, please contact Roxanna Altholz, associate director, International Human Rights Law Clinic, 510.643.8781, raltholz@law.berkeley.edu
Climate Change Policy Report Released December 2009.JPG)
Two students in the International Human Rights Law Clinic have written a report calling on nations to address the human rights impacts of climate change policy for presentation at the UN Climate Change Conference in Copenhagen. The report, Protecting People and the Planet: A Proposal to Address the Human Rights Impacts of Climate Change Policy, highlights the unintended consequences of climate change policies, and recommends that states adopt a program for action to develop policies that incorporate international human rights standards.
Students Zoe Loftus-Farren ‘11 and Cáitrín McKiernan ‘11 received support and guidance from clinic professors and other faculty, as well as from Berkeley Law’s Miller Institute for Global Challenges and the Law, and the Center for Law & Global Justice at the University of San Francisco School of Law.
Loftus-Farren and McKiernan will travel to Copenhagen to present the paper at the Climate Change Conference, which runs from December 7-18th. “Our research revealed serious gaps in how countries are incorporating the issue of human rights into their climate change policies,” said McKiernan. “We are offering a concrete proposal to fix this problem.”
There is growing concern that policies aimed at reducing greenhouse gases will create or exacerbate human rights concerns. For example, a policy designed to increase hydropower production may curb greenhouse gas emissions, but it may also harm fisheries and the indigenous peoples who depend on them. Access to information, public participation in policy decisions, and respect for livelihood rights can help these communities thrive despite climate change.
Similarly, policies to relocate people because their environment becomes uninhabitable must take into account the social and physical impacts on communities, lest competition for scarce resources generate conflict. Will the relocated communities have access to water, food, and shelter? What legal rights will they have if they are moved to a new country? Currently, there is no coordinated effort to address the human rights impacts of climate change policies or to use human rights standards to improve the resiliency of populations.
The report recommends that countries work together to clarify existing human rights standards, facilitate information sharing, and provide technical assistance so that all states develop and implement sustainable and humane climate change policies.
The students are also using social media to promote their ideas. Loftus-Farren and McKiernan launched a Facebook page to disseminate an open letter to President Obama signed by U.S. social justice groups calling on the President to promote climate justice at Copenhagen and beyond. The site has hundreds of members.
“Climate change is the defining issue of our generation,” said Loftus-Farren. “We bring new tools, along with new ideas to tackle the pressing issue of climate change.”
Berkeley Law’s International Human Rights Law Clinic (IHRLC) designs and implements innovative human rights projects to advance the struggle for justice on behalf of individuals and marginalized communities through advocacy, research, and policy development.
Berkeley Law’s Miller Institute for Global Challenges and the Law seeks to support populations often overlooked or unprotected by existing legal infrastructure. It focuses on urgent challenges that demand innovative, global approaches, including promoting the rule of law, fighting systemic corruption and supporting human rights.
The Center for Law & Global Justice at the University of San Francisco School of Law serves as the umbrella organization for university pursuits relating to global justice. The Center works around the world to develop and implement global justice projects, such as the Project to End Juvenile Life Sentences Without Parole and the Keta Taylor Colby Death Penalty Project.
The interns were supervised by IHRLC Director Laurel E. Fletcher; Michelle Leighton, director of Human Rights Programs, Center for Law & Global Justice; Alice M. Miller, Senior Fellow, Miller Institute for Global Challenges and the Law and Lecturer in Residence at Berkeley Law; and, Cymie R. Payne, Lecturer in Residence, Berkeley Law.
Mary Robinson, former President of Ireland and former UN High Commissioner for Human Rights and Professor Alice Miller, Senior Fellow at the Berkeley Law's Miller Institute for Global Challenges and the Law co-authored an article on climate justice "Expanding Global Cooperation on Climate Justice" based, in part, on "Protecting People and the Planet" policy paper.
Press Stories
UC Berkeley students to emphasize rights at global climate confab, Contra Costa Times, 12/04/09
Law students try to shift climate policy in Copenhagen, The National Law Journal, 12/07/09
View video of the panel presentation at the Copenhagen Conference here
Returning Home Policy Paper Released March 2009
Three students from the International Human Rights Law Clinic traveled to Washington, DC, over the March 2009 spring break to brief Executive Branch officials, Congressional staff, and human rights organizations on a policy paper released this week by the International Human Rights Law Clinic and UC Berkeley’s Human Rights Center, “Returning Home: Resettlement and Reintegration of Detainees Released from the U.S. Naval Base in Guantánamo Bay, Cuba.”
This policy paper recommends that the U.S. promote programs to assist former detainees released from the U.S. detention facility in Guantánamo Bay, Cuba, to reintegrate into their communities. These programs should be an integral part of any comprehensive plan to close the camp.
Based on a review of available data on released detainees as well as analysis of similar reintegration programs, the paper finds that assistance to released Guantánamo detainees will help support U.S. national security, repair America’s image abroad, and provide an appropriate humanitarian response to former detainees held for years in U.S. custody without trial or conviction.
The policy paper proposes the establishment of comprehensive, locally-tailored resettlement and reintegration programs. These should offer short-term financial assistance and job support, an opportunity for former detainees to clear their names, and mental and physical health services.
The trip culminates over a semester of work for clinic interns Nandini Iyer ’10, Krista Kshatriya ’10, and Jonas Lerman ’10. The interns were supervised by International Human Rights Law Clinic Director and Clinical Professor Laurel Fletcher, Clinic Program Officer Jamie O’Connell, and Human Rights Center Faculty Director and Adjunct Professor Eric Stover.[add links to the faculty profiles]
“Repairing the damage of Guantánamo is one of the most pressing human rights issues we face as a nation,” Kshatriya says. “Our research reveals an urgent need for reintegration programs for detainees released from Guantánamo.”
The group plans to meet with representatives from the offices of Senators Boxer, Lugar, and Durbin, as well as a number of nonprofit organizations, including the American Civil Liberties Union and Human Rights First.
“Any comprehensive plan to close Guantánamo must include reintegration programs for released detainees,” says Iyer. “These meetings are valuable opportunities to present our findings and policy recommendations to those who will be involved in the discussions on closing Guantánamo.”