Archbishop Desmond Tutu, Along With Activists and Scholars, Discusses Transitional Justice at HLS

On Tuesday, March 9, Harvard Law School, the Harvard Human Rights Program, and UNICEF will sponsor the panel discussion “Children and Transitional Justice.”

Archbishop Desmond Tutu will participate by video, along with Yasmin Sooka of the Foundation for Human Rights, South Africa, Susan Bissell, Global Chief of Child Protection for UNICEF, Sharanjeet Parmar of Global Rights, and Jens Meierhenrich of the Harvard University Department of Government.

Harvard Law School Dean Martha Minow will moderate.  The event will take place in the Ames Courtroom in Austin Hall from 12:00 – 1:00 pm.

For more information, please click here.

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ECtHR Holds Russia Liable for Disappearances in Chechnya

On Thursday (10/29), the European Court of Human Rights (ECtHR) released its ruling on three cases concerning disappearances in Chechnya. In one of the cases, the victim, Mayrudin Khantiyev, had been abducted from his home by a group of masked men. In the other two cases, the victims, Yusup Satabayev and Kazbek Vakhayev, disappeared while in Russian detention. In all three cases, the Court rejected Russia’s arguments that the men had not been under Russian control at their time of disappearance and awarded the victims’ families a combined total of 130,540 euros for Russia’s violations of the victims’ rights under the European Covenant on Human Rights.

These cases fall in a steady stream of petitions to the Court concerning events in Chechnya—by some estimates up to 400. The Court has now issued judgments in 120 of these cases and has developed evidentiary presumptions for the Chechen context, which it applied to the cases at hand.

For example, the Court has before held that it will draw a negative inference from Russia’s refusal to turn over investigative reports—despite the fact that Russia’s domestic law bans the government from doing so. The Court relied on such an inference to reject Russia’s claims that Satabayev and Vakhayev had been released from Russian detention before they disappeared. Furthermore, the Court made reference to factual presumptions arising from Russia’s “exclusive control” of the area from which Khantiyev was abducted—as well as Russian guards’ “blatant passivity” in response to the event—in rejecting Russia’s contention that Khantiyev’s abductors had not been Russian agents.

In analyzing claims relating to the victims’ right to life, the Court referred to a much stronger evidentiary presumption that it first developed in the 2006 case of Imakayeva v. Russia: “[I]n the context of the conflict in the Chechen Republic, when a person is placed in detention without any subsequent acknowledgement of the detention, this can be regarded as life-threatening.” In other words, the Court will presume someone dead when it is established that they disappeared under Russian control.

Ole Solvang, Executive Director of the Russian Justice Initiative, suggests that such victim-friendly evidentiary presumptions have developed in the Chechen disappearance context due to the fact that “[t]he frequent lack of evidence concerning the fate of the victim and the identity of the perpetrators makes it difficult for a court to hold individuals responsible for the disappearance of a person.” The problem is also widespread, with a Human Rights Watch (HRW) report from 2005 already estimating that some 5,000 people had disappeared in Chechnya at the hands of military and security forces since the outbreak of hostilities in 1999—occurrences that in the aggregate HRW calls a crime against humanity.

HRW’s allegations, based not on human rights law but rather on the laws of armed conflict or international humanitarian law (IHL), remind us that the line of Chechen cases before the ECtHR are part of a larger trend of victims of wartime atrocities turning to human rights tribunals to air their claims in the absence of effective enforcement for the laws of war. Last summer’s armed conflict in South Ossetia, for example, has given rise to a flurry of additional cases before the ECtHR as well as a claim by Georgia before the International Court of Justice (ICJ) that Russia’s actions violated the Convention on the Elimination of Racial Discrimination—a case that the ICJ accepted on the bases of the Convention even though it would not have been able to hear it without Russia’s consent had it been brought under IHL.

There are different views on the merits of translating wartime activities into claims under human rights instruments designed for peacetime, but one result of the trend is clear from the ECtHR’s treatment of the Chechnya cases. While IHL generally applies different law to different individuals based on their status as a civilian or member of an armed group, human rights courts seem generally willing to substitute their functional tests that look beyond membership to the individual characteristics of the victim. In the present three cases, for example, the Court made no distinction between Satabeyev, who had been a member of a rebel group, and the other two victims, who had not.

In other cases, the Court has further proved willing to enforce the protections provided by human rights law even when IHL would explicitly have offered lesser protection. For example, in the 1996 case of Bazorkina v. Russia, the Court found that a rebel detained while in active combat enjoyed the extensive procedural rights afforded by the Convention—as opposed to the low level of protection provided to combatants in non-international armed conflicts by Article 3 common to the 1949 Geneva Conventions.

Notwithstanding their legal victories, family members of victims in Chechnya still bemoan Russia’s continued unwillingness to help them locate the bodies of their loved ones, according to a HRW report published last month. Nevertheless, with some 300 cases still pending before the ECtHR on the Chechen conflict alone, as well as new cases from the South Ossetian conflict now on the dockets of the ECtHR and ICJ, it is unlikely we will soon see the end of war victims turning to human rights law for reparation.

For further information, please click here.

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IAEA Relies on Member States

The International Atomic Energy Agency (IAEA) held its largest meeting ever during 8-11^th April. Attended by member states and 2 new participants, China and Spain, the focus of the meeting was research and development needs in safeguards and verification. 41 delegates discussed the future agenda of the Member State Support Programme (MSSP), specifically addressing areas of research, technology transfer and operational support for verification activities. Given the IAEA’s own limitations in finance and implementation, the IAEA relies on its member states in order to meet its safeguards. The organization also released its publication, “Research and Development Programme for Nuclear Verification, 2008-2009,” a document released biennially detailing the IAEA’s activities in research, development and implementation activities. For further details, please click here.

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OECD Still Open to Sovereign Wealth Fund Investments

The Organization for Economic Co-Operation and Development (OECD) responded to the controversy surrounding investments by government-owned Sovereign Wealth Funds (SWFs) by releasing a report stating its commitment to remain open to such investments as long as they are commercially rather than politically motivated. The report responds to concerns among OECD member countries that such funds will be used for political purposes. It also sought to deal with fears among the oil-producing and export-focused Asian nations that operate SWFs that recipient nations will use political concerns as a means to impede legitimate SWF commercial activities. For more information, please click here.

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Fiscal Drag Creates Uneven Tax Burden

A new OECD study investigated the interaction between income, inflation and tax obligations in OECD countries.  Notably, workers in several countries saw their nominal tax burden rise in response to high earnings growth. This phenomenon, known as fiscal drag, occurs in countries where tax rates increase as nominal taxable income rises. Workers are thus forced to pay higher taxes due to inflation or, ironically, after experiencing increases in real income. The latter scenario played out in several upper-middle income OECD countries that experienced high growth rates in full-time earnings, such as Greece, Hungary, South Korea, Portugal and Turkey. Despite concerted legislative efforts to ease tax burdens, such high growth in earnings – in many cases more than 40% – pushed enough workers into a higher income bracket to create fiscal drag.

For the full story, please click here.

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Uneven Reforms

The OECD report, “Going for Growth 2008″, is an annual study that measures the extent to which the world’s developed countries follow the OECD’s recommended strategies for promoting growth.   The study confirms the generally held notion that Americans work longer hours than Europeans.  This disparity, however, is almost entirely attributable to differences in women’s habits, with men tending to work similar hours on both sides of the Atlantic but European women working fewer hours than their American counterparts. In attempting to explain this finding, the report points to differences in the regulatory environment, specifically emphasizing the role of Europe’s higher marginal tax rates.

For the whole story, click here.

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Iran Safeguards Report Circulated to IAEA Board

On March 2, 2007, the International Atomic Energy Agency (“IAEA”) provided a report about Iran’s nuclear safeguards to its Board of Governors, its 35-member policymaking arm.  The report, which details Iranian nuclear developments that have occurred since November 15, 2007, is entitled: Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions 1737 (2006) and 1747 (2007) in the Islamic Republic of Iran.  While the Board will discuss its contents during a meeting in Vienna on Monday, March 3, 2007, the report’s circulation is circumscribed, to be read and discussed only within the Agency unless the Board itself decides otherwise.  

Dr. El Baradei, the Agency’s General Director and a 2005 Noble Peace Prize Winner (along with the IAEA) defines the task in Iran as “[making] sure that the Iranian nuclear programme is exclusively for peaceful purposes,” and says that “in the last four months, in particular, we have made quite good progress in clarifying the outstanding issues that had to do with Iran´s past nuclear activities, with the exception of one issue, and that is the alleged weaponization studies that supposedly Iran has conducted in the past.”  A transcript of an  interview with Dr. El Baradei in regards to this latest report is readily available.

For the full story, please click here.

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Addressing Immigrant Overqualification

The OECD, a Paris-based organization that aims to facilitate economic cooperation among 30 leading industrialized nations, recently released a report elucidating general trends in immigration in OECD countries. The report found that immigrants in OECD countries are generally better educated than locally-born populations.  Roughly one in four immigrants have earned a university education, compared to the roughly one in five native-born residents who have done so. This is almost universally accompanied, however, by what OECD Secretary-General Angel Gurría called the “problem of overqualification”, whereby immigrants find it difficult to find jobs that match their abilities.  Gurría urged OECD countries to put into place policies to alleviate issues underlying the problem, which include language barriers and difficulties in evaluating foreign institutions of higher education. The report also notes the magnitude of the “brain drain”, a term used to denote the massive migration of skilled workers away from poor, undeveloped countries.  The impact is especially stark amongst small African and Caribbean countries, with many having 40% of their skilled workers and 50% of their health professionals living abroad.

For the full story, click here.

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African Union Monitors “Arche de Zoe” Affair

The African Union continues to take cognizance of the “Arche de Zoe” affair two weeks after condemning it as unjustifiable, scandalous, and an abuse of humanitarian interference. The incident refers to a case in which sixteen Europeans (including nine French citizens) who claimed to be on a mission to save war orphans from Darfur could be facing stiff sentences and hard labor after attempting to airlift 103 children out of Chad. Members of the group, which is linked to a French charity called l’Arche de Zoé (Zoe’s Ark), are charged in Chad with extortion and child abduction. Amid evidence that the 103 children in question were not necessarily sick, orphaned, or even from Darfur, the failed mercy mission has grown into a diplomatic scandal that could jeopardize international plans to deploy peacekeepers in the borderlands of the troubled Sudanese region.

The full text of the press release is available here.

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