The Clinic’s Accountability and Transitional Justice program conducts advocacy and applied research to prevent and to end mass atrocities, hold governments and their agents accountable for them, and assist societies rebuilding after mass violence. Working with transnational networks of activists, its projects have contributed to accountability on four continents. Our activities in this area are listed in reverse chronological order below:
Killings by U.S. Customs and Border Protection Agents
U.S. Customs and Border Protection (CBP) is currently the largest law enforcement agency in the United States. Since 2010, CBP agents have killed at least fifty migrants and U.S. citizens along the U.S.-Mexico border. The victims include unarmed minors shot in the back, U.S. citizens killed while in moving vehicles, and Mexican nationals who died after they were beaten, shot with Taser guns, or repeatedly pepper sprayed by CBP agents. The Clinic has partnered with Alliance San Diego, a community empowerment organization that builds coalitions to promote justice and social change. Alliance San Diego also helps to lead the Southern Border Communities Coalition, which is comprised of more than sixty advocacy groups. These two organizations seek to document abuse by CPB agents, elevate the most egregious cases of abuse in the media, seek justice for the aggrieved, and pursue administrative and legislative policy solutions to improve the oversight and accountability of CBP agents. The goal of this project is to support Alliance San Diego’s effort to hold CBP and its agents legally accountable for the killing of migrants at the border.
In the fall 2015, the Clinic released a working paper, Elusive Justice: Pursuing Legal Redress in the United States and Mexico for Killings by U.S. Border Agents, which examines legal accountability for killings by U.S. Customs Border Patrol. The working paper concludes that efforts by the victims’ relatives to seek redress through the U.S. legal system have been largely unsuccessful. U.S. prosecutors routinely decline to prosecute these cases and U.S. courts frequently dismiss civil lawsuits brought by victims’ relatives. Indeed, no CBP agent has been held accountable by a criminal or civil court for an unlawful killing. The working paper recommends that advocates and victims consider reframing killings by CBP agents and the lack of legal accountability as human rights violations and submit complaints against the United States before international human rights bodies.
In the spring 2016, the Clinic was retained by the family members of Anastasio Hernández Rojas to initiate human rights litigation against the United States before the Inter-American Commission on Human Rights. On May 28, 2010, a dozen CBP agents beat and Tased Hernández Rojas, a father of five and long-time resident of San Diego. He died as a result of his injuries and his death was ruled a homicide. (A Democracy Now special report on the killing can be viewed here). Despite eyewitness and video evidence of the incident, the Department of Justice closed its criminal investigation of Anastasio’s killing for lack of evidence in November 2015.
In cooperation with co-counsel Alliance San Diego, Clinic students filed a complaint before the Inter-American Commission on March 30, 2016 in Washington, D.C. The complaint alleges that the United States is responsible for torturing and killing Anastasio Hernández Rojas and failing to effectively investigate and prosecute the perpetrators in violation of international human rights law. The lawsuit against the United States was widely reported by media outlets, including Democracy Now, L.A. Times, Salon, Huffington Post, USA Today, the San Diego Union-Tribune, Univision, and Telemundo.
The Inter-American Commission announced on May 10, 2017 that it will move forward with the case, and has given the U.S. government three months (until August 10, 2017) to respond to the complaint. The Commission’s decision to consider its first case against the United States involving an extrajudicial killing by law enforcement killing received extensive coverage by media, including Democracy Now, TeleSur, the San Diego Union Tribune, KPBS Public Media, Law360, and Vice. A failure to respond would break with the United States’ decades-long history of active and robust engagement with the Inter-American human rights system. If the Trump administration ignores the deadline, the Inter-American Commission has the authority to enter a default judgment on behalf of the complainants.
Independent Investigation of the Murder of Berta Cáceres
On March 2, 2016, armed persons stormed into the home of human rights defender Berta Cáceres, shot her dead, and injured Gustavo Castro, a Mexican national. Before her death, Berta had mobilized indigenous Lenca communities in a grassroots campaign that prompted the world’s largest dam builder to withdraw from the Agua Zarca Dam project – one of dozens of dam projects approved by the Honduran government on Lenca land. In response to her activism over the years, Berta had achieved international acclaim and become the target of death threats and the victim of physical attacks and legal persecution. In 2013, the Inter-American Commission for Human Rights ordered the Honduran government to take action to protect her safety.
Honduran police have arrested eight suspects for the murder, including the manager of environmental issues for the Honduran company Desarrollos Energéticos, S.A. (DESA) that has government authorization to build the Agua Zarca Dam, the former deputy chief of security for DESA, and an active-duty major in the Honduran army. But the case has not progressed without serious problems. In late 2016, the criminal file was stolen from the vehicle of a judge. To date, the intellectual authors of the murder have not been fully identified.
According to international human rights experts, Honduras is the most dangerous country in the world for environmental activists. Members of the organization founded by Berta, the Consejo Cívico de Organizaciones Populares e Indígenas de Honduras (COPINH), continue to be victims of threats and attacks. The vast majority of crimes against Honduran human rights and environmental activists are never investigated.
Immediately after the murder, the Cáceres family called for an independent investigation of the crime by international experts. The Honduran government, however, refused to reach an agreement with the Inter-American Commission on Human Rights to authorize an international investigation. In 2016, the International Expert Advisory Panel (GAIPE) was created at the request of the Cáceres family and with the support of national and international civil society organizations. GAIPE’s mandate is to carry out an impartial and independent examination of the criminal investigation, conduct an analysis of the context in which the attacks occurred, and issue recommendations.
Over the spring 2017 semester, Clinic students worked with GAIPE’S team of international experts to investigate the murder of Cáceres. Students investigated facts related to the case, including issues related to the state security forces and businesses tied to the murder, and provided their findings to the expert panel. GAIPE’s final report with recommendations was published on October 31, 2017. See full coverage of the report and its recommendations here.
Sexual Exploitation & Abuse in Peacekeeping Missions
Sexual exploitation and abuse (SEA) in the context of peacekeeping is a much publicized problem affecting peacekeeping missions established by the United Nations (U.N.) and African Union, among others. Civilians have filed complaints of sexual exploitation and abuse against military contingents, police, humanitarian personnel who work for the United Nations or others involved in U.N. missions. The U.N. response is widely regarded as inadequate. In 2015, the U.N. Office of Internal Oversight Services lamented in its internal review of the agency’s response to peacekeeper SEA the lack of assistance and support made available to victims, many of whom number among the most vulnerable anywhere, and urged the institution and member States to resolve their longstanding failure to properly address and finance redress for victims of peacekeeper sexual abuse and exploitation.
In fall 2016, the Clinic partnered with REDRESS, a London-based human rights NGO, to research and prepare a report advocating that much greater effort be made to provide victims of SEA in peacekeeping missions prompt, adequate and effective redress. Redress has a long history of helping torture survivors and other victims of human rights abuses participate in international and national human rights fora, and obtain justice and reparation. The project focused on the ways in which advocates, as well as national governments, and the United Nations can look beyond questions of perpetrator accountability to address the victims’ need for support and reparation.
Over the 2016 – 2017 academic year, Clinic students prepared a legal research memorandum on issues of parentage, funding, and mission-level responses to PSEA in Somalia, the Democratic Republic of the Congo, Central African Republic, and Haiti. Additionally, students conducted interviews with experts, academics and activists, prepared fact and international and foreign legal research, and legal analysis that they contributed to the drafting of the final report. The final report was released in September 2017, in conjunction with high-level meetings on peacekeeper sexual exploitation and abuse in New York. The authors intend the report to serve as an advocacy resource, generate increased international attention to this issue, and catalyze action, including contributing to recent momentum on this issue, such as the August 2017 appointment of the United Nation’s first ever Victims’ Rights Advocate, who is tasked with coordinating and ensuring redress for victims of peacekeeper sexual exploitation and abuse.
Documenting the Situation of Women & LGBTQI* Human Rights Defenders
Women and LGBTQI* human rights defenders around the world are targeted for repression, harassment, persecution, violence, and sometimes even death. Publicized cases, including the assassination of Berta Cáceres, a Honduran environmental, indigenous rights, and land rights advocate, exemplify the dangers these human rights defenders face. Patterns of similar incidents are evident across a wide range of issues and countries, such as in the widespread persecution of feminist activists in China, ongoing impunity for sexual violence in India, and the systematic use of brutal violence and institutional barriers to silence LGBTQI* activists and sex workers organizing in Russia. These human rights defenders work with and serve the world’s most vulnerable and marginalized communities, and are themselves particularly vulnerable to these threats.
States employ a variety of legal and policy measures to restrict the ability of these activists to operate in civil society, including burdensome registration requirements, restrictions on funding and activities, judicial harassment, and campaigns of social stigmatization. Neither the gendered nature and impact of these efforts, nor the creative strategies used by these activists to resist State efforts to restrict their work are widely known, even among their sister activists. To address this, during the 2016-17 academic year, the Clinic partnered with Oakland-based Urgent Action Fund for Women’s Human Rights (UAF)—an organization which provides grants to women and LGBTQI* human rights defenders around the world. Students conducted extensive research on international and domestic laws in 17 countries, and interviewed nearly 20 frontline activists to prepare a briefing report. The final report, launched in December 2017, will be used by UAF and its sister funds in Africa, Latin America, and Asia to advocate for policy change among funders and international actors, as well as to share successful strategies for resistance among women and LGBTQI* human rights defenders. The report has been featured in stories at Berkeley Law and International Law Grrls.
Supporting War Crimes Prosecutions in Uganda
Thomas Kwoyelo, former commander of the Lord’s Resistance Army, has been implicated in war crimes and crimes against humanity committed during armed conflict in northern Uganda from the late 1980s through the early 2000s. After years of deliberation on his eligibility for amnesty, proceedings against Kwoyelo are slowly moving forward before the International Crimes Division (ICD) of the Uganda High Court. This case is the first war crimes case to be tried within Uganda’s domestic court system—a unique example of the “domestication” of international criminal law. The Kwoyelo case is expected to reveal critical lessons for both the potential and limitations of national courts seeking to prosecute international crimes.
In the spring 2017 semester, clinic students assisted in the research and drafting of an amicus curiae brief for submission by eminent African legal scholars, including professors of Uganda’s Makerere University Faculty of Law and Justice Richard Goldstone of South Africa. In this brief, amici clarify the relevance and constitutionality of customary international law with respect to the confirmation of charges in this case. Students traveled to Uganda over spring break to participate in consultations about the brief and the constitutionality of customary international law with the Ugandan law professors and, on the basis of this additional research, helped to finalize the brief. The brief addresses a critical issue in the Kwoyelo case. By accepting the amicus filing, the court would strengthen precedent for role of amicus curiae briefing in subsequent trials before the ICD. Additionally, students produced an online library on customary international law as a resource for local lawyers and judges. They also contributed research to an article on the role of customary international law in the Kwoyelo trial for the California Law Review.
Colombia Accountability Project
In February 2010, the Clinic 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 Clinic 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. counter-narcotics 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 United States has extradited 30 AUC members on drug-related charges. After the report was issued, Clinic students traveled to Washington D.C. with Clinic faculty, to brief U.S. officials, academics, international organizations, and non-governmental 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.
Since the 2008 extraditions, the Clinic 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 (WSGR) and Colombian human rights organizations, the Clinic represents the relatives of individuals disappeared and murdered by paramilitary groups in furtherance of their drug. Under the federal Crime Victims’ Rights Act (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’s clients seek to participate in criminal proceedings in order to tell their stories and obtain information from the defendants about their crimes.
On November 6, 2009, the Clinic and WSGR filed a motion in district court for recognition of our clients as crime victims of drug conspiracy charges against Hernán Giraldo Serna. Paramilitary commander Giraldo Serna was considered one of Colombia’s top cocaine traffickers and has been indicted by Colombian prosecutors for hundreds of murders and raping dozens of women and girls. Giraldo Serna was one of the Colombian warlords extradited in 2008. The Clinic’s clients are the widow and daughter of Julio Henríquez, an activist who was training farmers to grow legal crops instead of coca (cocaine’s main ingredient) in an area under Giraldo Serna’s control. Giraldo Serna ordered his troops to disappear, torture, and execute Henríquez in 2001. Henríquez’s body was found six years later.
On August 7, 2015, the judge denied our clients victim status finding that the Henríquez murder was “too factually attenuated” from the conspiracy for which Giraldo Serna was convicted. Counsel for the victims petitioned the D.C. Circuit for a writ of mandamus arguing that the district court erred in its interpretation of the CVRA and its consideration of evidence and requesting that the court reverse the district court’s order. Both the government and defense counsel opposed the petition.
On October 16, 2015, the D.C. Circuit found that the district court abused its discretion, and ordered the district court to use correct legal standards to consider anew whether the Henríquez family was entitled to full rights under the CVRA. On March 14, 2016—after a six-year court battle—a federal judge granted the Clinic’s clients the right to participate in the criminal proceedings against Giraldo Serna.
The Clinic’s work representing Colombian victims received front page coverage by the New York Times on Sunday, September 11, 2016. The New York Times investigation illuminates what happened to a group of Colombian paramilitary leaders after they were extradited to the United States. It reveals that “[m]ost were handsomely rewarded for pleading guilty and cooperating with the American authorities; they were treated as first-time offenders despite extensive criminal histories in Colombia; and they received credit for time served there, even though the official rationale for their extradition was that they were committing crimes in Colombian jails.” Some received permission to live with their families in the United States.
On March 3, 2017, Henríquez’s widow and two daughters became the first foreign victims to be heard in a U.S. court regarding an international drug conspiracy case (see coverage by NPR, the Guardian, Courthouse News Service, and TeleSur). In three hours of testimony, they provided grim details about Henriquez’s disappearance and the harms they suffered. Before sentencing Giraldo Serna to sixteen years, Judge Walton commended the Henriquez family for their courage and emphasized that impact their testimony had on his decision.
Criminalization of Peaceful Expression
Elected and autocratic governments are increasingly responding to critics and media by adopting new laws or resurrecting old laws to criminalize speech. Particularly with the growing power and profile of civil society and new media in many countries, governments see the power of the written or spoken word as a threat to their hold on power. Laws on national security, state secrets, sedition, and criminal defamation are particularly popular tools to intimidate and muzzle critics. New cybercrime laws are being passed and considered in many countries, aimed at shutting down information outlets like Facebook, blogs, and online media.
During the 2016-17 academic year, the clinic partnered with Human Rights Watch Asia Division to combat government efforts to criminalize speech. Clinic students conducted research and prepared memoranda on domestic laws in several countries in Southeast Asia used to criminalize peaceful expression and analyzed these laws in light of international human rights standards. Students also contributed research to a Human Rights Watch report, “They Can Arrest You at Any Time:” The Criminalization of Peaceful Expression in Burma which addresses the legal restrictions and criminal prosecutions of political opponents who sought to exercise peaceful expression in the country.
Transitional Justice in Sri Lanka
A newly-elected government in Sri Lanka announced a series of initiatives to address the violence that occurred in the country’s 26-year civil war. The government has promised to establish a truth commission, a criminal tribunal to prosecute perpetrators of atrocities, and an office for missing persons; to institute security sector reforms; and to provide reparations to victims. Justice is needed. As many as 100,000 people were killed during Sri Lanka’s civil war, during which the Liberation Tigers of Tamil Eelam (LTTE or Tamil Tigers) fought against government forces for an independent state for ethnic Tamils who historically suffered from discrimination by the majority Sinhalese. Both sides allegedly committed war crimes and crimes against humanity, including murdering civilians, summary executions, and enforced disappearances. The conflict ended in 2009, when the Sri Lankan military defeated the Tamil Tigers after a major offensive marked by heavy civilian casualties.
In the spring of 2016, while the Sri Lankan government worked to establish transitional justice mechanisms, the clinic partnered with the Centre for Policy Alternatives (CPA) on a project aimed at ensuring that the country’s transitional justice mechanisms are responsive to the needs of victims. Clinic students prepared a legal memorandum regarding comparative security sector initiatives in transitional justice contexts. This analysis explained the vetting process and its “specific aim of transforming institutions involved in serious abuses during the conflict into public bodies that enjoy civic trust and protect human rights.” It also analyzed best practices and presented case studies relevant to the Sri Lankan context on the topic. The students’ work will be used by CPA in discussions with victim communities and civil society groups as part of its initiatives as the leading Sri Lankan civil society organization promoting transitional justice in the country.
Gender-based Violence as Torture
U.N.-appointed human rights experts (called special rapporteurs) issue annual reports that raise thematic issues of concern to high-level forums of the United Nations (e.g., the U.N. General Assembly, and the U.N. Human Rights Council). Thematic reports are opportunities to define or redefine particular issues in the field, to highlight practices that violate existing standards, to expand the discussion and debate, and to contribute to the formation of standards and norms which will prevent the most egregious of practices.
In the fall of 2015, the clinic supported the U.N. Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (SRT), Juan Mendez, to issue a report on gender perspectives on torture. The report assesses the applicability of the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment in international law to the unique experiences of women, girls, and lesbian, gay, bisexual, transgender and intersex persons.
Clinic students researched and drafted a working paper which analyzed a wide range of practices to which women are subjected that might constitute torture under international human rights norms and discussed how existing standards preventing torture and CIDT are currently applied. The students’ semester culminated in their presenting their findings at November 2015 expert consultation sponsored by the SRT on gender and torture held in Washington, D.C.
Human Rights in Armed Conflict and Mass Violence in India
Several areas in India are beset by armed conflict. The regions of Jammu & Kashmir, Manipur, and Chhattisgarh are differently but persistently affected by conflict, with conflict-related issues intermittently occurring in Punjab as well. The conflict in some of these areas has additional international dimensions. Additionally, areas such as Gujarat and Odisha have been impacted by far-reaching violence perpetuated against minority communities. The clinic partnered with the Armed Conflict Resolution and the People’s Rights Project, now the Political Conflict, Gender and People’s Rights Project (“Project”), a major research initiative of U.C. Berkeley’s Center for Race and Gender. This collaboration sought to research, analyze, and document the performance of the Indian State in meeting international human rights standards in providing access to justice for victims of internal armed conflict and mass violence in India, particularly women. It also sought to provide recommendations to advocates and policy makers to bring India’s practices in line with these standards.
Right to Remedy and Reparations for Victims. To advance the overall project goals, during the 2013-14 academic year, clinic students prepared two working papers. The first, entitled The Right to a Remedy for Enforced Disappearances in India, analyzes India’s obligations under international human rights law to ensure the right to a remedy for enforced disappearances and other gross human rights violations, evaluates India’s domestic law in light of the country’s international legal obligations, and identifies gaps and recommends law reforms to address them. The second working paper, entitled Comparative Country Studies Regarding Truth, Justice, and Reparations for Gross Human Rights Violations, examines transitional justice initiatives undertaken in Brazil, Chile, and Guatemala to address the widespread human rights abuses perpetrated during the military dictatorships in those countries and compares these initiatives to truth seeking mechanisms in India. Together, these documents support the work of advocates advancing redress for human rights violations committed in areas that have experienced internal armed conflict or mass social unrest in India.
In February 2014, clinic students presented their research at a meeting in Nepal with scholars and lawyers convened by the Project to discuss how international and State laws might intersect to protect the rights of civilians. For more information about the meeting, see the news story here.
Access to Justice. Rape and other forms of sexual violence are common features of protracted conflict and social upheaval that has marred (post)colonial India. The clinic and the project published a report in October 2015, entitled, Access to Justice for Women: India’s Response to Sexual Violence in Conflict and Social Upheaval, which examines emblematic case examples from conflict zones and incidents of mass violence to understand how the Indian State responds to sexual violence against women and girls in these contexts. The goal of this report was to analyze the efforts of women victims of sexual violence and their allies to access justice in these contexts and to identify typical ways the Indian legal system succeeded or failed to provide effective redress. Based on this analysis and applicable international standards, the report makes specific recommendations for action by the Indian State to address critical institutional issues. The report accompanied a monograph by Project principals, Angana P. Chatterji and Mallika Kaur entitled, Conflicted Democracies and Gendered Violence: The Right to Heal, and both publications were released at a launch event at Berkeley Law. Watch the video here, and read news stories here and here.
Promoting Justice for Conflict-related Sexual Violence Against Men in Uganda
International attention to conflict-related sexual violence has surged in recent years. Yet while most of the literature and legal instruments focus on strengthening accountability for crimes against women and girls, who are often seen as the main targets of abuse, men and boys around the world are also targets of sexual violence during armed conflict and in its aftermath. The experiences of male survivors of sexual violence in conflict, however, remain under-reported and under-studied, and demand recognition and accountability. The clinic partnered with the Refugee Law Project (RLP), the largest refugee service provider in East Africa, to promote access to justice for male survivors. In April 2013, clinic students presented legal research at an RLP-sponsored convening in Kampala, Uganda which brought together male survivors, service providers, policy makers, and academics to discuss and strategize how to meet the health and legal needs of survivors. The research identifies gaps in domestic legal protections for victims, and informs an advocacy agenda that promotes legal accountability for sexual violence against men. This comprehensive analysis was published in June 2013 as Promoting Accountability for Conflict-Related Sexual Violence Against Men: A Comparative Legal Analysis of International and Domestic Laws Relating to IDP and Refugee Men in Uganda. Clinic director, Professor Laurel E. Fletcher presented the research in July 2013 at a U.N. meeting on sexual violence against men and boys in armed conflict. For more information about the working paper and its impact, please visit our news page here and here.
The project has continued to promote wider discussion of justice for male survivors at the national, regional, and international levels. In November 2013, the clinic participated in the high-level Public Interest Litigation Planning Workshop in Kampala that brought together lawyers and activists from across the African continent to critically examine available legal options and opportunities for male victims and survivors of conflict related sexual violence to access justice. In February 2014, the clinic and RLP submitted a Commentary on the ICC Draft Policy on Sexual and Gender Based Crimes with the goal to strengthen the International Criminal Court’s investigations, charging, prosecutions, and sentencing, though a gender-inclusive approach to sexual and gender based crimes in conflict situations. The ICC Office of the Prosecutor released its final policy in June 2014.
ICC Victim Participation Study
In the nearly two decades since the ICC’s establishment, thousands of victims have been registered as “victim participants,” and thousands more have applied to the court for acceptance. There is now widespread agreement, both inside and outside of the court, however, that the ICC victim participation program needs reform. At the request of the International Criminal Court (ICC), Berkeley Law School’s Human Rights Center conducted a multi-country study to assess the experiences of over 600 victim participants (level of satisfaction, personal security, sense of justice having been served) during their affiliation with ICC proceedings regarding Uganda, Democratic Republic of Congo, Kenya, or Côte d’Ivoire. Clinic students prepared legal analyses and participated in the fieldwork conducted in Kenya in spring 2014. The report, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court, published in 2015, offers recommendations for ICC reforms to better manage and meet victim expectations.
Improving War Crimes Investigations
Recent innovations in science and technology have provided human rights advocates, journalists, and scientists with new tools to expose war crimes and other serious violations of human rights and to disseminate this information in real time throughout the world. The clinic supported an initiative of the Human Rights Center (HRC) at U.C. Berkeley to convene a series of meetings that drew together investigators and prosecutors from the International Criminal Court (ICC), specialists in cyber investigations, experts in information technologies, human rights investigators and researchers, foundation representatives, representatives of NGOs, and academics to discuss the emerging challenges and opportunities posed by new media for prosecuting war crimes and crimes against humanity at the ICC.
In October 2013, clinic students worked with students from the Samuelson Clinic for Law, Technology & Public Policy to present research papers in Salzburg, Austria at the HRC workshop on Improving War Crimes Investigations. The papers addressed the use of cyber evidence in international criminal tribunals, the federal statute that regulates U.S. cooperation with the ICC, and technological and legal considerations for collecting evidence in cyber investigations. A summary of the meeting can be found here.
In March 2014, clinic students conducted legal research and participated in a workshop in San Francisco, War Crimes Workshop on Defending Human Rights Against Gross Abuses of State Power and Crimes Against Humanity, hosted by the HRC and Yahoo!, in partnership with Business for Social Responsibility and Videre est Credere. The goal of the workshop was to generate ideas and strategies to address the needs of ICC prosecutors regarding access and analysis of electronic data from U.S.-based internet service providers to support the investigations of perpetrators of atrocity crimes.
Truth and Reconciliation Commission of Canada
Canada initiated a truth and reconciliation 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 was to generate a comprehensive public record of the residential school system and experience. Over the course of three semesters, clinic students provided legal research and analyses to the TRC to promote a human rights-based perspective in the commission’s work. Clinic students presented their work at several TRC-sponsored workshops and conferences at the University of British Columbia in 2011 and 2012, as well as at the TRC regional conference in Victoria, British Columbia in April 2012. The Commission’s final report, Honouring the Truth, Reconciling for the Future, was released in 2015.
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 collaborated with the Human Rights Center’s (HRC) Sexual Violence Program to conduct case studies of selected countries in Africa as part of HRC’s global study of the issue. 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. During the 2012-13 academic year, clinic students worked on a second SGBV case study in Uganda and conducted a field mission to Kampala, Uganda. Students contributed to HRC’s comparative report on best practices in the investigation and prosecution of conflict-related sexual violence published in 2015, The Long Road: Accountability for Sexual Violence in Conflict and Post-Conflict Settings.
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 has been movement toward terminating the refugee status of certain groups of refugees in the region through the legal mechanism of cessation 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 provided legal analysis on the scope and proper application of international law governing when refugee status may be terminated. In addition, clinic students developed advocacy materials to ensure that refugees are informed about their rights and legal options, local advocates stand ready to assist eligible refugees to apply for exemption from the cessation process, and state authorities uphold the principles and norms of refugee, human rights, and humanitarian law.
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 first trials at the ICT began in 2011. The clinic collaborated with the Liberation War Museum (LWM), an NGO located in Dhaka, Bangladesh, which works to promote civil society engagement with the ICT. From August 2010 through December 2011, clinic students prepared legal memoranda on international criminal law and practice relevant to the ICT for LWM to use in its outreach efforts. In January 2012, clinic students participated in a workshop sponsored by LWM on the application of international criminal law to the ICT in Dhaka.
Corporate Accountability Project
Each year, international financial institutions (IFIs) provide governments and companies billions of dollars to undertake development projects. Ostensibly, the projects are aimed at improving the welfare of community members through better education and roads, improved health care and governance, and greater access to water and energy. Some projects are also responsible for severe environmental degradation and egregious human rights violations. 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 clinic has worked with partners in a variety of contexts to hold corporations to account when their activities threaten the human rights of local communities.
Study on Accountability & International Financial Institutions. In March 2017, the Clinic published Accountability & International Financial Institutions: Community Perspectives on the Compliance Advisor Ombudsman (CAO). CAO was created by the World Bank in 1999 to ensure that its private-sector development projects are environmentally and socially sound. The report uses statistical analysis and case studies to examine how CAO works, what factors influence its approach and outcomes, and when communities believe it is effective and fair.
The report finds that during its first decade of operation (2000-2011), CAO had some success facilitating agreements between affected communities and World Bank-financed companies, but produce an agreement or conduct an audit. Study data also suggests that several factors—such as the wealth of the company, the involvement of international NGOs, and the size of the World Bank’s loan—may have influenced CAO’s process and outcomes.
In CAO, the World Bank has created the expectation of accountability, but seldom the reality. The study recommends that the World Bank strengthen CAO’s accountability mandate. CAO currently does not have the authority to hold the bank or the private companies its finances accountable for breaches of bank social and environment policies. Nor does CAO have the authority to provide a remedy for harms caused by development projects. The report also suggest ways CAO should address power imbalances between parties and create opportunities for meaningful participation by affected communities throughout its complaint process.
Today, every major International Financial Institution (IFI), including the African Development Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank, and the Inter-American Development Bank, has established an accountability mechanism similar to CAO. These IFI accountability mechanisms are often the only form of recourse available to affected communities. This report contributes to on-going discussions about how to strengthen the accountability mandate of these mechanisms.
Study on Community Participation in CAO Dispute Resolution and Audit Procedures. The Office of the Compliance Advisor Ombudsman (CAO) is the most prominent and influential of the accountability mechanisms established by IFIs. CAO is the independent recourse mechanism for the International Finance Corporation (IFC) and Multilateral Investment Guarantee Agency (MIGA), the private investment arm of the World Bank.
In 2012, the clinic undertook a study of the CAO to understand how affected individuals participate in CAO’s dispute resolution and audit procedures. Clinic students compiled data on CAO’s projects for statistical analysis, selected sample projects, and drafted background memos. In 2013, students conducted in-depth interviews of various stakeholders involved in CAO procedures, including CAO staff, World Bank officials, project company representatives, NGO representatives, and members of affected communities about projects undertaken in various countries in Latin American, Africa, Eastern Europe, and Asia. The clinic’s final report, which includes policy recommendation for promoting effective community participation is forthcoming.
U.S.-Financed Dam Project in Mexico. In 2010, the clinic partnered with San-Francisco-based Accountability Counsel (AC) and 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 began construction although local villagers had not been consulted fully or informed of the health and environmental impacts of the project, which threatened to contaminate local drinking water and fishing areas to produce energy for private companies. The complaint resulted in the suspension of the project. This news story further details the clinic’s work on the project.
Complicity with Human Rights Violations in the Middle East and North Africa. 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 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 worked 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 sought 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 worked on the Inter-American litigation. They 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 traveled to Guayaquil, Ecuador to attend a hearing before the Inter-American Court of Human Rights. On December 22, 2012, the Inter-American Court issued its ruling (Spanish and English) in the case. The Court found that upper echelons of the Guatemalan military conspired with politicians and police to target and eliminate the “disappeared” victims due to their perceived political and social views. It ordered Guatemala to investigate, prosecute, and punish those responsible for the crimes, recover the victims’ remains, construct a national park dedicated to the memory of the victims, and pay more than $8 million in damages to the victims’ families. In accordance with Guatemala’s legal obligations under the American Convention on Human Rights, the Court’s orders are binding. For more information about the ruling, please visit our news page.
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 nearly 4,000 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. 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. The analysis of the ECCC in “Cambodia’s Search for Justice” complements a study of public attitudes toward the court by U.C. 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.
Inter-American Commission on Human Rights Project
In December 2012, the clinic, in collaboration with the Center for Justice and International Law (CEJIL), conducted a comparative study entitled: “Comparative Analysis of the Practice of Precautionary Measures Among International Human Rights Bodies” (available in English and Spanish) on the use of emergency measures by international human rights bodies. These measures typically are issued to prevent immediate and grave harm and are referred to as “precautionary measures.” The report analyzes the international legal framework regarding precautionary measures and compares the standards and practices of the Inter-American Commission on Human Rights (IACHR) to those of other human rights bodies. The report covers legal trends with respect to sources of authority, procedural mechanisms, and the scope of rights protected. The IACHR has used precautionary measures for decades in a variety of contexts in which individuals were at grave risk of immediate and irreparable harm. For example, the IACHR has ordered States to halt executions, safeguard the property rights of indigenous peoples, and to protect judges, witnesses, and human rights defenders. This response to urgent human rights situations recently has come under intense scrutiny by Member States of the Organization of American States and is the focus of recent proposals to curtail the powers of the IACHR. The study concludes that the approach of the IACHR is consistent with international practice. The reforms proposed by the OAS Permanent Council are not required for the IACHR to harmonize its standards and practices with those developed by all other human right bodies. This report was presented at a meeting of civil society before the OAS Permanent Council on December 7, 2012, at the headquarters of the regional body in Washington, D.C. An audio of the presentation is available here.
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 considered issuing a 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 consider 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, 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, clinic 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. CEDAW issued its General Comment No. 30 on women in conflict prevention, conflict and post-conflict situations in November 2013.
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 worked with the International Center for Transitional Justice and the Sierra Leone Court Monitoring Program to help human rights organizations in countries emerging from conflict 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 was to help those courts provide fair trials to those accused of the most serious international crimes and have a positive, long-term impact on the country where the crimes occurred. In fall 2008, clinic students drafted a 60-page handbook to help local groups support and oversee international courts’ work. The handbook covers best practices in particular areas of court operations, such as victim participation and outreach, going beyond existing fair trial monitoring manuals. It also identifes 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) partnered to promote 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 advocated for congressional action to reform the U.S. foreign policy process. Their proposed legislation was 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, clinic students traveled to Washington D.C. 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, receiving 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 considered new rules of procedure. The clinic collaborated with Interights, a human rights organization based in London to propose 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 their deliberations. Students had a direct impact on the debate and discussion of the new rules.
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 clinic students prepared 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.
Alien Tort Claims Act Litigation
In July 2002, a Florida jury decided in favor of plaintiffs in Ramagoza-Arce v. Garcia and 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 U.C. 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 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.