I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows, which are extremely fluid, but the number of asylum-seekers may range from around17,000 to over 30,000, mostly from the African countries mentioned above.¹ The number of refugees recognized under the Convention by Israel since ratification in 1954? One-hundred and seventy (170). The bulk of these asylum seekers began to arrive in 2005 and although many have since left the country, there are still thousands who remain with precarious status in Israel.

These asylum seekers arrive in Israel by way of a treacherous journey through the Sinai desert and across the Egyptian border, but this is hardly the last barrier they face. Some are immediately sent back to Egypt (so-called “hot returns”), in violation of the peremptory norm of non-refoulement which intends to prevent refugees from being returned to the site of their persecution. This is particularly egregious as the abuse of these migrants by Egyptian authorities is well documented; last spring a principled company of Israeli Defence Forces (IDF) soldiers serving on the border refused to carry out the return of African refugees as they knew the Egyptian border police routinely shot at, sexually assaulted, and even murdered these migrants.

Provided they pass the border successfully, there is still the threat of detention: as of 2009, two thousand asylum seekers were detained in Israeli prisons for indeterminate periods of time, even as unaccompanied minors.² The government distinguishes between those asylum seekers who have contacted the UN High Commissioner for Refugees (UNHCR) to file a petition and those who are apprehended before doing do — the latter are arrested, detained indefinitely, and are eligible for deportation. This places those who arrive at the border and make a claim for refugee status at a disadvantage to those who are able to evade the authorities until they reach Tel Aviv to make a claim with the Commissioner.³

Israel began to assume control over its refugee status determination (RSD) from the UNHCR in 2002 and it now has full control over the system. This process is problematic as the country has no refugee law: asylum seekers have effectively no right representation, appeals must be made to the body responsible for the first decision, and issues of standards obviously arise in attempting to coordinate efforts amongst two bodies with divergent institutional interests.⁴ Asylum seekers’ rights to earn a livelihood and to move freely around the country are restricted: the conditional release documents given to the vast majority do not permit them to work and they often restrict the holder from traveling to or living in key labour market areas.⁵ They are also excluded from receiving social assistance.

What’s more, many asylum seekers are stamped as enemy nationals automatically upon arrival. Last March the Israeli parliament passed a first reading of a bill to update an old emergency measure that the government is currently using to restrict migration flows. The Infiltration Prevention Bill would reaffirm a policy that allows the government to detain “infiltrators”, defined as citizens of an enemy country, for up to seven years; anyone caught with a weapon, even a knife, could face 20 years. The Sudanese government is hostile to Israel and is therefore an enemy country, like most Arab states and Iran. This means that all of its nationals are automatically deemed a security threat and this law could be used to prevent their recourse to flee from the conflict in the region. This is in clear contravention of Article 3 of the convention which forbids receiving countries to discriminate against applicants on the basis of race, religion, or country of origin. Furthermore, anyone who would assist asylum seekers in easing their stay in Israel would also be subject to the same maximum penalties of 20 years behind bars. This means that the dynamic and committed Israeli citizens we met on a field visit with the Hotline for Migrant Workers in Tel Aviv could be potential criminals, all for working to promote the human dignity of refugees and migrant workers.

While Israel has ratified the Refugee Convention, it has not implemented it into its domestic law. Still, the country’s supreme court has affirmed has accepted the Convention as an interpretive guide and in El-Tai’i v. Minister of Interior the court affirmed that the principle of non-refoulement is binding.⁶ This case is yet another testament to the limits of international treaties and human rights standards. How Israel will deal with these asylum seekers is not a simple question of respect or non-respect of the Refugee Convention; the country has underlying identity issues that complicate matters greatly.

As Tally Kritzman-Amir of the Van Leer Jerusalem Institute reminds us⁷, Israel is unlike many other democracies in that to protect the Jewish character of the state, its immigration regime grants citizenship only to Jews and their relatives. Demographics cause the country a great deal of anxiety; it has an interest in maintaining a population advantage over the 20% Arab minority. The reception of African refugees, particularly those from the Sudan who are mostly Muslim (apart from the South Sudanese Christian minority), cannot be assessed without regards to these ethno-religious overtones. Since immigration regimes are governed by the sovereign will of the state, the policy of Jewish return is not in question here. However, this prerogative cannot seep into Israel’s commitments to the international refugee regime if it is to remain an institution based on the principles of non-discrimination.

This influx of migrants is, without a doubt, a massive destabilizing agent in a country of seven million. Still, Israel is actually under no international legal obligation to naturalize these asylum-seekers and refugees; indeed, many of the 170 who obtained refugee status were resettled to other countries like Canada.⁸ The country must only make good on its commitments to international refugee law by giving asylum seekers, regardless of origin, a fair chance at RSD. Donors would jump at the opportunity to fund Israeli efforts to integrate and resettle refugees and display their commitment human rights. And it costs nothing to grant the thousands of asylum seekers in the country the right to work legally and with dignity while their cases are reviewed. Israel describes itself as “the only democracy in the Middle East” and in keeping with this, it should aspire to develop a more cosmopolitan refugee regime, not one that would marginalize some of the most vulnerable people under the banner of security and sovereignty.

A visit by former Vice President Dick Cheney in September received a similar welcome, as have other visits by Bush administration officials. Already in 2004, a group called Lawyers Against the War tried to bring torture charges against Bush by filing criminal charges.

The number of voices calling for investigation and prosecution is growing and now includes several mainstream human rights organizations, including Amnesty International and Human Rights Watch. On the political stage, federal NDP Immigration critic Don Davis urged the government to deny Cheney entry into Canada.

The evidence against Bush and Cheney also continues to mount. The Canadian Centre for International Justice teamed up with the New York based Center for Constitutional Rights to file a 70-page draft indictment against Bush ahead of his visit to Canada. The indictment was accompanied by 4000 pages of evidence that described the U.S. program of extraordinary rendition, the torture of detainees at Guantanamo Bay, and secret CIA detention sites.

Bush himself has on various occasions admitted to authorizing torture techniques, such as waterboarding. In an interview with American journalist Matt Lauer, Bush claimed the technique was legal because his lawyers told him it was. He then went on to dismiss the criticism that he got the lawyers to give him the legal opinions he wanted.

But international law and human rights experts have convincingly disagreed with Bush and his lawyers on the legality of these techniques, based on the following definition of torture set out in the Convention Against Torture:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity…”

Despite the overwhelming evidence presented, Canadian officials failed to even reply to the draft indictment. In response, four former and current US detainees from Guantanamo Bay filed a private torture prosecution with a B.C. court. However, this attempt was quickly quashed by the Attorney General of British Columbia.

Critics have aptly described both this action by the Attorney General as well as the federal government’s disregard of the draft indictment as examples of “politics trumping law.”

Canada ratified the Convention Against Torture in 1987, which obliges the government to investigate anyone within its borders believed to have committed torture.  Canada has also incorporated anti-torture provisions into its criminal code.

Human rights advocates had hoped the Obama administration would open an investigation of Bush and his officials, arguing the American legal system was the most appropriate jurisdiction. But almost three years into his mandate, Obama has shown very little interest in pursuing any action. This failure of the United States government therefore puts the burden of investigation and prosecution on other countries that have ratified the convention.

Canada failed these obligations when it refused to consider an investigation of Bush and Cheney, despite the presence of considerable evidence.

There are however encouraging signs that even Bush may be aware of the real possibility he may one day be investigated for his role in the torture of U.S. detainees.

Bush was scheduled to speak in Switzerland last February but cancelled at the last minute. Many suspect this may be because of the real possibility of a torture investigation based on complaints filed in Switzerland by torture survivors.

If more countries seriously consider their obligations under the Convention Against Torture, Bush and his officials may find their travel destinations outside the United States to be severely limited.

We could wait for states to agree on ways to resolve these ambiguities and conflicting rules. But I won’t hold my breath.

The Security Council passed the Resolution under Chapter VII of the UN Charter, which allows the Security Council to issue binding decisions to maintain or restore international peace and security. Thus, member states are obliged to take domestic measures to implement the Resolution’s sanctions against the Libyan regime. This post provides a brief overview and comparison of the specific domestic initiatives that Canada, the UK, and the US have taken to implement UNSCR 1970 at a domestic level.

Canada
On February 27, one day after the passage of UNSCR 1970, Canada adopted Regulations Implementing the United Nations Resolution on Libya and Taking Special Economic Measures. The Governor General made these regulations under the authority granted by the Special Economic Measures Act (SEMA). The Special Economic Measures Act grants the Governor General the authority to make regulations to impose sanctions against a foreign state when Canada is obliged to through its membership in an international organization or when there is a threat to international peace and security.

United States
On February 25, one day prior to the passage of UNSCR 1970, Barack Obama issued Executive Order 13556 Blocking Property and Prohibiting Certain Transactions Related to Libya. Although the sanctions took the form of an Executive Order, which are made and issued under the sole authority of the President, the authority to make such an order stems from the International Emergency Economic Powers Act (IEEPA). The Act gives the executive branch broad authority to impose commercial restrictions in response to foreign threats, provided that the President has declared a national emergency with regards to the threat (as Obama did with respect to Libya, also on February 25 2011).

United Kingdom
The Libya (Financial Sanctions) Order 2011 came into force on February 27, 2011.

As was the case in Canada and the United States, the UK’s financial sanctions were implemented in the form of an executive order. The source of executive authority to do so is the 1947 United Nations Act, which confers authority in the Queen to apply Security Council measures (except those involving the use of armed force) in the UK.

A Comparison of Domestic Implementations
In Canada, the United States, and the UK, financial sanctions against the Libyan regime were effected through exercises of executive power.

The Canadian and American sources of authority for the exercise of executive power were rooted in specific pieces of legislation authorizing financial sanctions against foreign powers where there is a threat to peace and security (SEMA and IEEPA, respectively). These tools allow for the implementation of financial sanctions without an order from the Security Council. As such, they allowed for financial restrictions that extended above and beyond those required by the Security Council (e.g. the extension of sanctions to additional persons and entities), and in the case of the US, allowed the domestic implementation of financial sanctions to pre-empt the Security Council’s formal resolution.

In the UK, however, the Queen derived her authority for implementing financial sanctions from the United Nations Act, which requires first the passage of a UNSCR. Unlike the Canadian and American regulations, the UK financial sanctions statutory instrument thus makes direct reference to UNSCR 1970 and adheres strictly to the designated persons and financial instruments referred to therein.

The US and Canadian approach, in which there is a pre-existing framework authorizing the executive to implement financial sanctions against a foreign power (irrespective of the existence of a UNSCR), is advantageous because it allows the executive to take voluntary measures to pass regulations more stringent than that require by the Security Council without having to wait for UN action. The UK approach, which is dependent on Security Council Resolutions, creates a more tempered and delayed response. At the same time, in requiring UN action, the UK approach to foreign financial sanctions might provide foreign investors with greater reassurance that they will not be deprived of their assets as a result of arbitrary, unilateral executive action, as might be the risk in the US and Canada.

While the unanimous adoption of UNSCR 1970 was well justified, the need for a review of sanctions and protection against arbitrary, unilateral action is still important. The behaviour of the Libyan regime is certainly deplorable, but the fact is that UNSCR 1970 and its domestic implementations are open-ended in their duration and provide little (if any) channel for review.

Aside from Libyan investors and the Libyan regime itself, the effects of such sanctions are far-reaching and may have unintended consequences. For example, one need not look further than the more than 500 Libyan students in Canada and 1900 students in the US whose scholarships from the Libyan government are in jeopardy (“Libyan students fear asset freeze”).

No matter how just the cause, unilateral and arbitrary exercises of executive power, particularly in the context of financial sanctions, must be practised judiciously, contain adequate measures for review, and have regard to the full range of consequences.

Following the assassination of Egyptian President Anwar Sadat in 1981, Egypt has been under permanent state Emergency Law that has limited political expression and dissent. [1] On May 11, 2011, Egypt’s parliament, dominated by President Mubarak’s National Democratic Party, voted to extend the Emergency Law active since 1981 for two more years. Although the official reason for the extension was to curtail terrorism and drug trafficking, the Emergency Law effectively gives the government the right to arrest “people without charge, detain prisoners indefinitely, limit freedom of expression and assembly, and maintain a special security court .” [2] Michael Scheinin – the UN’s special representative on human rights and terrorism, who went to Egypt in 2009 to document its human rights record – says that terrorism according to Egyptian law includes any act that is a “threat or intimidation with the aim of disturbing the peace or jeopardizing the safety and security of society.” [3] Such a broad definition of terrorism captures any activity causing unrest, giving much discretion and room for interpretation to the police.

The Constitution of Egypt itself has provided President Mubarak a legal framework for his monopoly on state power. Commentators have suggested that the “Egyptian struggle is at its heart, constitutional in nature.” [4] First off, nothing in the Constitution imposes a limit on the number of terms a President may serve, effectively giving Mubarak the ability to stay in power for the last 30 years. [5] Article 76 of the Egyptian Constitution provides that the President is to be nominated by Parliament with the endorsements of 250 elected officials, including 65 members of the lower house, the People’s Assembly. [6] Mubarak’s National Democratic Party overwhelmingly dominates the People’s Assembly, leaving little possibility for candidates of other political parties to be nominated.

The Constitution also gives extensive powers to the President, who alone can dissolve Parliament and call new elections. [7] Harvard Professor Tarek Masoud argues that the current Parliament is unsuitable for establishing any sweeping changes to the Constitution. A new Parliament would have to be formed, the problem being that only Mubarak would have the authority to call for new parliamentary elections. [8]

If Mubarak resigns, the next in line according to the Constitution would not be current Vice President Omar Suleiman but the Speaker of the People’s Assembly, Fathi Surour, according to Article 84 of the Constitution. [9] Many Egyptians consider Surour to be loyal to President Mubarak. As soon as the sitting President is permanently out, emergency elections must be held within 60 days to determine the new President, yet the Constitutional amendment procedure cannot be completed within this 60 day time period according to Article 189. [10] Therefore, as the Constitution cannot be amended within these 60 days, the elections would still go through the process defined under article 76, which of course strongly favours Mubarak’s NDP party.

If however, Mubarak declares himself “temporarily” unable to fulfill his presidential duties, then under Article 82 of the Constitution, the Vice President will take over his role. [11] The disadvantage of such a situation is that the Vice President cannot call for any amendments to the Constitution during his tenure, nor could he dissolve Parliament. [12] On the plus side however, the hasty election process that must be held within 60 days is not triggered and the People’s Assembly can choose to amend the Constitution at its own initiative.

Therefore, Mubarak’s immediate ousting from power would not be a desirable solution because there would be no constitutionally valid way of holding the fair and free election the Egyptian people want. The opposition groups can either discard the current Constitution completely, or negotiate with Mubarak to dissolve Parliament and have a new Parliament amend the Constitution according to the legal process set out in the Constitution. Although the need for constitutional reform that strengthens the rule of law and ensures a multiparty democracy in Egypt is strong, it should not be carried out in an extra-legal way that violates the rule of law in the first place.

If a new government were to discard the existing Constitution altogether, it would have to establish a new legal order from scratch. It would need a lot of time to negotiate with the various political factions in the country in order to come up with a new Constitutional document. Therefore, discarding the current Constitution would create a legal void which could produce unfavorable consequences in a developing country like Egypt.

A Constitutional reform that sticks to the current legal process can still ensure a smooth transition and ensure a fair elections process in September 2011. Although it may seem paradoxical to stick to the process dictated by a Constitution that many see as inherently flawed and biased towards Mubarak’s government, it would nevertheless help to “entrench and deepen the constitutionalist principle that has been eroded” under the current government. [13] To let Mubarak stay temporarily is the price that should be paid to guarantee an orderly transition and respect for the Rule of Law.

[1] Michael Slackman, “Egyptian Emergency Law Extended for 2 Years” The New York Times (May 11 2010), online: The New York Times .
[2] Ibid.
[3] Ibid.
[4] Nathan J. Brown, “Is it Time to Send in the Lawyers?” Foreign Policy (7 February 2011), online: Foreign Policy .
[5] Jonathan Wright, “What’s at Stake in talks on Egypt’s Constitution” Reuters (7 February 2011), online: Reuters.
[6] Ibid.
[7] Tarek Masoud, “An Exit Plan For Mubarak” The New York Times (3 February 2011), online: .
[8] Ibid.
[9] Clark Lombardi, “Should He Stay or Should He Go: Negotiation as the Price of Constitutional Legality in an Egyptian Transition” Comparative Constitutions (2 February 2011), online ComparativeConstitutions .
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Supra note 7.

However, when an apology comes from the government for a wrong committed to individuals, the reaction tends to be much less gracious and questions of legality quickly arise. U.S. Secretary of State Hillary Clinton recently apologized to the government of Guatemala for the intentional infection of Guatemalan prisoners and handicapped residents with syphilis and gonorrhea as part of a medical research program conducted from 1946 – 1948, where at least hundreds of people were directly infected. According to the New York Times, the researcher who discovered the report claims that the Guatemalan project was co-sponsored by the U.S. Public Health Service, the NIH, the Pan-American Health Sanitary Bureau (now the Pan American Health Organization) and the Guatemalan government. Questions of state legality includes a new twist under international law: how should the U.S apology be handled and is there an obligation for further reparations?

While a trend has developed for an international legal system which imposes positive obligations on states, the first draft articles on Responsibility of States for Internationally Wrongful Acts were only recently passed by the UN General Assembly in 2001. Still, the General Assembly had recommended that the International Law Commission review State Accountability since 1949. Thus, there is 50 years of experience and dozens of documents commenting on many areas that touch on State Responsibility. That State Responsibility is more complex in international law than municipal (and this is not to say that it is a cut and dry matter at the municipal level) is at least partially due to the sui generis classification of its character and to the complexities of the relationships of those involved.

Article 3 of the Draft Articles points to the sui generis nature of State Responsibility. It reads that the “[c]haracterization of an act of a State that is internationally wrongful is not affected by […] the characterization of the same act as lawful by internal law”. Instead of relying on traditional notions of tort or delictual claims, or fault and risk, the act of a State must instead contravene an international norm. Here, the U.S.’s actions clearly breached Article 7 of the International Covenant on Civil and Political Rights, one of the Helsinki declarations, which declares that no-one shall be subjected without his free consent to medical or scientific experiments. Although not technically a legal instrument, the Helsinki Declarations are often evidenced as customary international law. Thus, despite the sui generis character of State Responsibility the act in question could still be considered a breach of an international obligation.

However, the complexities arising from the relationships between those involved could still be determinative in whether an international obligation to provide reparation would be imposed. While the President of Guatemala, Alvaro Colom, has reportedly declared it to be a “Crime Against Humanity”, newspapers have reported that the American mission had full consent from the Guatemalan government to conduct its research. Article 20 of the Responsibility of States for Internationally Wrongful Acts precludes wrongfulness of an act towards a State where the State claiming the injury consented to the act. It would be essential to know the details of the permission granted – did Guatemalan officials give permission for the unlawful syphilis infections or did they give permission for U.S officials to conduct a medical study that they believed would cure those already infected? These questions will be crucial in determining the breach and reparations.

In any case, individuals have rights under human rights law. Article 33.2 of the Responsibility of States for Internationally Wrongful Acts explicitly states that individuals are within the scope of international obligations even if the obligation to the state has not been breached.

Finally, back to the original question posed – is an apology sufficient or should there be monetary compensation for the victims? Article 31 of the Act prioritizes admissible reparations. Restitution is ideal, compensation comes second and satisfaction is the least ‘satisfactory’ reparation available.

The U.S government has apparently mandated an investigation into current medical research in order to ensure that it conforms with ethical standards. This move would fit with the general preference by the International Court of Justice (ICJ) of cessation to compensation (LaGrand (Germany v. United States of America, Merits, [2001] I.C.J ).

Furthermore, the New York Times reported that there could be “more than 40 other studies where intentional infection was carried out with what we would now consider completely inadequate consent, in the United States.” This might be the most insightful factor when trying to determine what further action will be taken by the US government. With so many potential future claims, the United States will likely choose to fulfill its other obligations of reparation before monetary compensation.

The victims of Tuskegee, a related situation that took place in Alabama, in which the lead American doctor in the Guatemalan scandal also participated, demonstrates the degree of resistance the government has in paying compensation for such claims. However, the Star claims that victims of Tuskegee have quietly been given medical treatment. Similarly, in international law a State in breach of its international obligations may be required to offer reparation in kind as opposed to monetary compensation (Chorzow Factory (Indemnity) Case (1928) P.C.I.J (Ser.A.).

Once the victims have been properly identified, it is conceivable that they, and not the Guatemalan government, could demand similar reparations in kind for their health needs. While the U.S. is complying with its international obligations by investigating further breaches of ethical standards, a form of reparation that deals with the direct needs of the victims would not only be justifiable under international law, but also preferable.

Background

The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.

After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative source of normative shifts.

The ACHPR found Kenya to be in violation of Articles 1, 8, 14, 17, 21 and 22 the African Charter which included the rights to free practice of religion, property, education, culture, natural resources and development. (An interesting documentary detailing exactly how the Kenyan government infringed each right can be found here). The case (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya ), is a landmark decision in that it is the first time an international tribunal has recognized the right to development. The Commission seemingly utilizes Article 22 – the right to development – as an umbrella to safeguard numerous human rights including the right to property, religion and culture. In recent years, the right to development has remained a backdrop legal right, therefore this decision can be seen as a judicial indication of the direction of this debate in the global South.

The Right to Development

While the discourse surrounding developmental issues has traditionally taken a political and economic approach, the advent of documents like the Declaration on the Right to Development as well as the African Charter has allowed the discourse to take on a legal dimension.  However, the right to development remains a controversial tool because it is a group right designed to serve the collective. But does the ACHPR go too far regarding the right? Is this right to development too broad and subsequently is it in danger of collapsing upon itself? Or is this decision a recognition that collective rights are needed in communal societies?

The ACHPR grounded its finding of a violation of the right to development on the government’s failure to guarantee effective participation and to guarantee a reasonable share in the profits of the Game Reserve (or other adequate forms of compensation) to the Endorois. While the decision reflects the ideals of the African Charter, it continues to raise key questions regarding the right to development.  The basis for the decision seemingly moves this judicial organ beyond its conventional role into a politicized corridor. The broadness of the right to development allows it to touch upon the overall development process including largely political aspects like financial allocation. Ostensibly, as a result of this political aspect, the exact intersection between the right to development and human rights will continue to be illusive. Though the Endorois decision is a general step forward for the right to development, it seemingly reinforces the disconnect between the right and human rights.

The political dimension means that whether the decision will translate into concrete results remains to be seen.

Future considerations

The decision from the ACHPR requires the Kenyan government to compensate the Endorois and allow them to return to their lands. This decision, though not binding, has potential and precedential value. As Clive Baldwin, co-counsel for the Endorois, has stated:  “The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes.”  He continues by stating that “the African Commission is clear: the land where the Endorois historically lived is their property and must be returned to them.” However, it is important to take a measured approach in ensuring that this decision does not slip through the cracks and disappear. All the key actors must be engaged. The Kenyan government, the larger African community, the Endorois and NGOs are equally important pillars that must cooperate to ensure that the decision rendered by the Commission is adhered to. Particularly, the decision takes the significant step of spotlighting an indigenous group as a stakeholder in the developmental project. An approach that continues to underscore the importance of indigenous groups as well as the more widely recognized actors will likely reinforce this decision and it will subsequently serve as a key step towards a legally recognized right to development.

The 73-page report is heartbreaking.  It contains information from 128 interviewees interviewed by three Human Rights Watch staffers.  The accounts of murder, violence against children through child soldiers, rape, torture, abduction, and unimaginable brutality are not easy to read.  I did, however, feel a duty to pay attention to these accounts.

Astonishingly (at least to this Western writer), the 312 murders and 250 abductions went relatively unnoticed for months.  The area’s remoteness slowed communication, assistance, and investigation.  This persistent isolation surely devastates the local population, who were unimaginably terrorized by these atrocities.  Thanks to the courageous interviewees and interviewers, the world can take notice and seek some measure of justice.

The Human Rights Watch report calls for justice by addressing several stakeholders.  It first demands that the LRA cease its attacks and release its prisoners.

The report then addresses the governments of the Congo, Uganda, Central African Republic, and Southern Sudan, calling on these governments to focus on protecting civilians.  Part of the problem seems to stem from these government’s politically- and strategically-based shortcomings.  The governments failed the people of Congo by misrepresenting the strength of the LRA, by not contingently planning for the aftermath of failed military attacks on the LRA, and by lacking sufficient resources to respond to the attacks.

For these shortcomings, Human Rights Watch has asked these countries to improve on their future efforts and provide some measure of assistance to the traumatized Congolese citizens.

Congo in particular has been asked to tighten its policy against human rights abuses, particularly on the apparently abusive Congolese military’s own soldiers.  Regardless of rank, nationality, or circumstance, Human Rights Watch has called for zero tolerance for human rights abuses.  To reduce these abuses, Congo should provide soldiers with sufficient compensation and food.  Human Rights Watch has also called on the Congo to set up additional judicial mechanisms with international support to hold violators accountable.

Human Rights Watch has further called on international actors—Uganda, the UN, the ICC, individual donors, regional organizations, and the United States—to increase support in the struggle against the LRA.  Considering the LRA’s bloody history, this broad coalition of actors should answer the call to eliminate the LRA—a group of only an estimated 250.

Of course, international law plays a role here.  On the surface, humanitarian law calls for international criminal prosecution of the LRA’s leaders.  Clearly, the LRA’s war crimes and crimes against humanity beg for international criminal accountability.

The human rights implications are perhaps more subtle.  You see, while international human rights law may not provide a direct remedy against the LRA, it does hang in the background to push the Congolese government to act in support of the people of Congo.  In fact, several international human rights treaties could apply here.

In the Universal Declaration of Human Rights, Articles 3, 4, 5 respectively deal with the right to life, the protection against slavery, and cruel, inhuman, and degrading treatment.

As a party to the International Covenant on Civil and Political Rights, Congo must respect, protect, and promote its people’s civil and political rights.  In an atmosphere of poverty, isolation, and terror, the rural Congolese people are unlikely to have access to effective remedies (Art. 2), let alone to enjoy the right to life (Art. 6), freedom from cruel and inhuman treatment (Art. 7), slavery (Art. 8), or the basic respect for human dignity.

The ICCPR also binds the Congolese government to afford adequate judicial safeguards in prosecuting the perpetrators of these crimes (Art. 14).  Paradoxically, the Congolese government must also afford protection to the LRA—even in the face of its atrocities.

Other human rights treaties likewise loom in the background.  The Convention of the Rights of the Child screams out a laundry list of protections here, considering the role of child soldiers in the LRA (see, e.g., Arts. 6, 9, 11, 19, 20, 24, 32, 33, 34, 35, 36, 37, 38, 40).  Many of these obligations not only bind Congo to increase prevention efforts—they also require Congo to provide rehabilitative help for the child victims of these atrocities.

Also, the Convention on the Elimination of All Forms of Discrimination against Women binds Congo to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

Finally, in the spirit of African self-reliance, the African Charter on Human and People’s Rights binds Congo to protect its inhabitants.  Like the ICCPR, this treaty requires respect for life (Art. 4), dignity (Art. 5), liberty and security (Art. 6), legal remedy (Art. 7), information (Art. 9), mental health (Art. 16), family (Art. 18), and peace and security (Art. 19).

Now, the Congolese government will not likely face direct international legal action as a result of these international human rights treaties.  Nonetheless, their obligations under these instruments provide additional impetus to act to the full extent possible to respect, protect, and promote human rights in this devastated area.  Further, Congo’s compliance with these obligations will play hand-in-hand with the much needed support from outside actors, be they fellow African nations, international organizations, or the U.S.

It seems each of these actors has a role to play, especially the U.S.  Through its relatively new organization, Africom, the U.S. has pledged to support countries like Congo who desperately need assistance.  While the U.S. has already provided a large amount of aid to stop the LRA, more action appears to be on the way.

In fact, a bill before the House Foreign Relations Committee called the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act could further bind the Obama Administration to stop the LRA in short order.  Hopefully, the Human Rights Watch report will reach the U.S. people who will in turn urge their representatives to take all reasonable measures to end such atrocities at the hands of the LRA.