Friday, May 18, 2012

HB 87 Negatively Impacts Georgia Economy and Reputation 10:05 AM ET JURIST Guest Columnist Azadeh Shahshahani, Director of the National Security/Immigrants' Rights Project at of the American Civil Liberties Union of Georgia, says that Georgia HB 87, which requires residents to carry proof of citizenship, has negatively impacted both the state's economy and reputation since its adoption last year... One year has passed since the signing into law of Georgia's racial profiling law, House Bill 87. Although parts of HB 87 were temporarily enjoined as a result of the lawsuit brought by the ACLU and other organizations, the law's harmful effects are already being felt across Georgia. Immigrants and people of color feel increasingly targeted by racial profiling and abusive policing practices, as they conveyed to the ACLU Foundation of Georgia through a series of forums around the state in the summer and fall of 2011. Like the Arizona "show me your papers" legislation that inspired it, HB 87 effectively compels all people in the state of Georgia, citizens and non-citizens alike, to carry identification documents on them at all times — anyone who is believed by a police officer to have committed even a minor infraction is at risk of being asked to provide proof of their citizenship or immigration status. These are tactics associated with a police state, not a free country. The law also promotes racial profiling by giving police officers discretion in both determining what information is "sufficient" to prove a person's identity and in choosing whom to subject to an investigation of immigration status among those whose identity cannot be verified. This will inevitably lead to the profiling of anyone who looks or sounds "foreign." Through inviting the racial profiling of Latinos and other people of color, the law violates the Fourteenth Amendment's guarantees of equal protection and due process. As a result of the passage of this racial profiling legislation, Georgia has suffered reputational harm. At least two organizations, the US Human Rights Network and the American Educational Research Association have moved their conventions elsewhere. Georgia's largest industry is also suffering. Farmers who relied on the immigrant workforce are in trouble whether or not they ever hired undocumented workers. The Georgia Fruit and Vegetable Growers Association estimates that as a result of HB 87, Georgia's economy may lose $391 million and 3,260 jobs. One such job in the agricultural community may support as many as three "upstream" jobs. Other estimates have put the economic loss for Georgia farmers at between $300 million and $1 billion. Thousands of acres of onions, cotton, melons, and other crops have not been harvested due to an acute labor shortage that is a direct result of HB 87. Additionally, a switch from crops harvested by hand to crops harvested by machine will cost a farm up to $1.2 million due to the difference in the value of such crops. Every person in Georgia who farms, transports or sells farm produce, runs a business that depends on the patronage of farmers or buys groceries will feel the impact of this law. As an editorial in the Valdosta Daily Times noted: Maybe this should have been prepared for, with farmers' input. Maybe the state should have discussed the ramifications with those directly affected. Maybe the immigration issue is not as easy as 'send them home,' but is a far more complex one in that maybe Georgia needs them, relies on them, and cannot successfully support the state's No. 1 economic engine without them. The hard-earned tax money of Georgia's residents has also been spent on efforts to defend this wasteful and harmful anti-immigrant legislation. According to records obtained by the ACLU Foundation of Georgia, between June 2011 and December 2011 the amount of time spent by nine employees with the office of the state Attorney General in connection with the HB 87 litigation was over 868 hours. In light of the disastrous impact of this racial profiling legislation on Georgia's reputation and economy, the Georgia legislature must repeal HB 87. Azadeh Shahshahani focuses her work on Georgia's compliance with international human rights and constitutional standards. Recently, she was elected President of the National Lawyers Guild and is one of the Founders of Human Rights Atlanta. Suggested citation: Azadeh Shahshahani, Georgia's HB 87 Negatively Impacts Economy and Reputation, JURIST - Hotline, May. 18, 2012, http://jurist.org/hotline/2012/05/azadeh-shahshahani-georgia-hb87.php. This article was prepared for publication by Leah Kathryn Sell, an associate editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org. Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Thursday, May 17, 2012

Libya and the ICC: Inspiring Transitional Justice Reform 10:05 AM ET JURIST Guest Columnist Leila Hanafi, Regional Coordinator of the Middle East and North Africa at the Coalition for the International Criminal Court says the ICC is necessary for Libya to develop its own fair and productive justice system... It is impossible to discuss post-conflict reconstruction in Libya without reference to the issue of transitional justice and crimes that were committed during the conflict period after February 17, 2011. Ian Martin, the Special Representative of the Secretary-General and head of the UN Support Mission in Libya, briefed the UN Security Council (UNSC) in March 2012 on transitional justice, enhancing the Libyan legal system and its accountability capacity catapulting it to the top of the agenda to mobilize international assistance. The post-conflict reconstruction process in Libya has reignited an essential debate among transitional justice advocates: what role could the International Criminal Court (ICC) play to foster criminal justice development and increase the capacity of the Libyan justice system to prosecute its most serious crimes? Muammar Gaddafi's four decades of autocratic rule were marred by widespread human rights abuse that undermined the foundations of Libya's political economy — including basic institutions of governance, economic development and the rule of law. The survival of the system heavily relied on brutal repression of any opposition via a network of intelligence agencies who acted above the law with complete impunity. Those who dared to criticize the political system did so with the utmost care and lived under constant threats and harassment. It is against this background of repression of rights that one has to assess the call for rule of law and justice reforms. Members of the judiciary played a significant role in the revolution — judicial independence was one of the main demands of the February 2011 revolution. The Libyan judicial system is not functioning effectively and suffers from the legacies of its past — it was used as a tool of repression. While Libyan law provides for an independent judiciary, it was not independent in practice. Today, all human rights organizations seem to acknowledge that the general situation in Libya remains fluid. The lack of security, reports of widespread abuse of internally displaced people and the human rights violations of detainees are particularly worrying to the human rights community. In February 2012, Amnesty International (AI) released a report titled "Militias threaten hopes for new Libya," which details ongoing and widespread arbitrary detention, unauthorized interrogations, coerced confessions and torture. Similarly, the International Commission of Inquiry on Libya, which was set up by the UN to examine alleged crimes committed during the conflict, issued its own report, declaring that: Breaches of international human rights law continue to occur in a climate of impunity ... forces loyal to Libyan leader Muammar Gaddafi carried out mass executions and tortured suspected regime opponents, amounting to crimes against humanity. Those who argue against the Court's intervention in Libya virtually never acknowledge that Libya was referred to the ICC by the UNSC. In this context, it is worth noting that with Resolution 1970, the country remains under the jurisdiction of the ICC. While the ICC has temporal jurisdiction in the country and could open investigations, the question that comes to mind is: how can the ICC inspire the criminal justice reform process in Libya? Recently, there has been some movement on establishing a process of transitional justice. The National Transitional Council (NTC) recently created a Fact-Finding and Reconciliation Commission and adopted laws related to transitional justice. The Libyan criminal justice system must meet these new challenges based on a changed international environment. The country's police, prosecutors and legal framework are now called upon to become scrupulous actors in observing evolving standards of human rights and accountability. Libya must reform its criminal justice system in line with the Rome Statute to pave the way for international cooperation on criminal matters. It must also affirm its commitment to upholding the rule of law and universal human rights. Once Libya's new legislature is in place, ratification of international human rights law conventions, and accession to the ICC, would lend legitimacy to the country's commitment for reform. Libya should take advantage of the ICC's robust governing statute to inspire its own national legal framework and repeal the special laws that were put in force during the reign of Gaddafi. The country's new authorities are now facing the need to strengthen the judicial structure, including building the capacities of judges, ousting corrupt or incompetent judges, computerizing the information system and processing existing files. Based on my discussions, some of the immediate steps that Arab and international analysts have converged on for enhancing the Libyan legal system and its accountability capacity include: Guarantee that the future constitution of Libya incorporates international human rights law; Reform laws to bring them into conformity with Libya's obligations under international law; Consider the rights of victims in all mechanisms of accountability in accordance with international norms and standards; Establish an independent judiciary; and Create programs for increasing the number of judicial, police, prison and other officials. The international community will need to assist Libya in its efforts to establish transitional justice, bearing in mind that some justice mechanisms already exist in Libya, but, also, that there is a shortage of such mechanisms. In this respect, the role of capacity building for civil society organizations cannot be overemphasized, including documentation of human rights violations, protection of victims and witnesses in view of litigation and legislative reform. Today, the country is one of the many examples of how Middle Eastern and North African societies grapple with balancing the ideals of tradition in national and international law with the imperative of making society more just for its people. Leila Hanafi works as a regional coordinator for the Middle East and North Africa at the Coalition for the International Criminal Court, a global network of more than 2,500 civil society organizations in 150 countries advocating for the ICC and improved access to justice for victims of genocide, war crimes and crimes against humanity. She is a graduate of American University and Georgetown University. Suggested citation: Leila Hanafi, Libya Reform Should Utilize ICC, JURIST - Hotline, May 16, 2012, http://jurist.org/hotline/2012/05/leila-hanafi-libya-ICC.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org. Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, May 16, 2012

Connecticut Repeal of Capital Punishment Signals National Trend 3:05 PM ET JURIST Guest Columnist Ben Jones, Executive Director for the Connecticut Network to Abolish the Death Penalty, says that Connecticut's repeal of the death penalty is one of the first of a trend of states moving away from capital punishment ... Last month, the Connecticut General Assembly passed legislation that five years ago seemed extraordinary, but now is increasingly commonplace: it repealed the death penalty. During the last quarter of the twentieth century, state after state has reinstated the death penalty. Recently, that tide has turned. After Connecticut Governor Dannel Malloy signed the repeal into law, Connecticut became the fifth state in the past five years to abandon capital punishment, joining New York, New Jersey, New Mexico and Illinois. In each of the states that recently ended the death penalty, frustration with the practice had been growing for years. During recent legislative debates in Connecticut, a clear consensus emerged that the state's death penalty was broken. Both sides of the debate could agree on one thing: Connecticut's death penalty had been an abysmal failure since its reinstatement in the 1970s. The question facing legislators was whether to try to fix the system or repeal it. After careful study of the death penalty and its effects, a bipartisan majority of legislators concluded that the only way to fix the death penalty is by ending it. In taking this step, the Connecticut General Assembly responded to concerns raised by those constituencies most directly impacted by the death penalty. In particular, the personal stories of murder victims' families resonated with legislators. In February 2012, 179 Connecticut murder victims' family members joined a letter calling on lawmakers to end the death penalty. "The reality of the death penalty," they explained in their letter, "is that it drags out the legal process for decades. In Connecticut, the death penalty is a false promise that goes unfulfilled, leaving victims' families frustrated and angry after years of fighting the legal system." These pleas by victims' families changed lawmakers' minds and played a key role in the passage of a repeal bill. The African-American community in the state, led by the NAACP, also was vocal in joining the calls for an end to the death penalty. Throughout its history, the US has applied the death penalty in a biased and arbitrary manner. This bias stubbornly persists even after decades of reforms. A recent study by Stanford Law Professor John Donohue found patterns of death penalty bias first brought to the Supreme Court's attention in McClesky v. Kemp. Donohue's study showed that in Connecticut, as in other states, prosecutors are more likely to seek the death penalty when the victim is white than when the victim is a minority. In addition to this systemic bias, Georgia's execution last September of Troy Davis — an African-American whose guilt was in doubt — served as a potent symbol of the role race continues play in America's death penalty. Following Davis' execution, NAACP President Benjamin Jealous made repeal of the death penalty a priority and focused on Connecticut in 2012. Jealous joined Connecticut NAACP leaders in a series of rallies, marches, and press conferences calling for repeal of the state's death penalty. Their message was clear: the only way to eliminate bias in capital punishment is to repeal it. Enough is enough. Finally, members of Connecticut's law enforcement community grew increasingly frustrated with the state's death penalty. Nationally, a majority of police chiefs recognize that there is no evidence that the death penalty deters crime — a point backed up by a recent study conducted by the National Academies. Beyond being ineffective, the death penalty wastes millions of dollars a year that could go toward more effective crime-fighting programs. In Connecticut, the General Assembly's non-partisan Office of Fiscal Analysis estimated that the state eventually would save $5 million a year by ending the death penalty. Confronted by such a wasteful and ineffective system, prominent law enforcement officials spoke out. Repeal of the death penalty, in the words of the New Haven Police Chief Dean Esserman, was "long overdue." As key constituencies voiced their concerns, proponents of capital punishment found it impossible to articulate a system that could allay these concerns. Due to Connecticut's history of capital punishment, lawmakers greeted proposed reforms with skepticism. They had been fooled once before. In 1995, Connecticut legislators hailed the passage of a death penalty reform bill as a breakthrough that would render the state's death penalty "workable." Yet, 17 years later, the public remained as frustrated as ever with a death penalty system characterized by delay and bias. There was no will in Connecticut to imitate Southern states and limit safeguards against wrongful executions, due to the numerous death row exonerations and executions of potentially innocent individuals in these states. At the same time, lawmakers had run out of patience with Connecticut's death penalty law, which prolonged the legal process and inflicted additional harm on murder victims' families. For lawmakers, there was only one way to balance the rights of the wrongfully convicted with the needs of victims' families — repeal the death penalty. Connecticut's experiment with capital punishment has come to an end. Expect more states to follow suit. With each passing year, promises that we can design a fair, effective, and foolproof death penalty grow more and more tenuous. In response, a powerful coalition of murder victims' families, civil rights leaders, and law enforcement officials — joined by pro-life Catholics, mainline Protestants, and Jewish leaders — has come together to call for repeal of the death penalty in Connecticut and other states. Clearly, lawmakers are listening. Ben Jones has served as the Executive Director of the Connecticut Network to Abolish the Death Penalty (CNADP) since 2009. He directed the organization's grassroots organizing, lobbying, and media campaign during the 2012 legislative session that led to the passage of a bill that repealed Connecticut's death penalty. In addition to his work at CNADP, Ben is pursuing a Ph.D. in political science at Yale University. Suggested citation: Ben Jones, Connecticut Repeal of Capital Punishment Signals National Trend, JURIST - Hotline, May 16, 2012, http://jurist.org/hotline/2012/05/ben-jones-capital-punishment.php This article was prepared for publication by Stephen Zumbrun, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Sunday, May 13, 2012

Palestine Cannot Circumvent UN State Admission Procedures 2:05 PM ET JURIST Guest Columnist Solon Solomon, former member of the Knesset Legal Department, says that the procedures governing UN state admission must be duly adhered to when determining the issue of Palestinian statehood... The recent decision by the International Criminal Court (ICC) Prosecutor Luis Moreno-Ocampo on the issue of Palestinian statehood, apart from its political facet, has also sparked an important legal debate on a number of issues. However, before entering into any discussion on specific issues, the relevant legal framework has to be set. In other words, what has to be elucidated is the relationship between the Rome Statute, the treaty that governs the functions of the ICC, and the Vienna Convention on the Law of Treaties, the treaty that both dictates how other treaties are to be interpreted and how they will ultimately function in the international legal sphere. Even before the Prosecutor's recent decision, voices had been raised in international academia arguing that the Rome Statute, as an international treaty, should be read under the lens of the Vienna Convention. The latter stipulates in Article 31 that each treaty should be interpreted according to its "object and purpose." The Rome Statute states in its Preamble that one of its purposes is to "guarantee lasting respect for and the enforcement of international justice." Thus, it has been contended that the Palestinian entity should be recognized as a state in order for justice not to be denied in light of alleged Israeli war crimes. However, resorting to an abstract concept, such as justice, in order to justify an expansionist reading of a criminal provision, such as Article 12(3) of the Rome Statute, which explicitly speaks of "states," should not be condoned. The principle nullum crimen sine lege pervades international criminal law and imposes a strict, grammatical interpretation. Also, the Vienna Convention should not be referred to as the guiding legal framework. True, the Rome Statute is a treaty, but international criminal law is a highly positivist field with certain interpretational peculiarities that cannot always abide by the spirit that the Vienna Convention provisions want to instill in international law. The Rome Statute should be seen as lex specialis, a sui generis legal instrument that is guided by the rules that govern international criminal law. These rules take precedence, in case of collision, over the more general Vienna Convention provisions. The Vienna Convention can also not be invoked in order to a priori concede that Palestine is a state. According to such an approach, the UN Secretary-General does not need to seek the General Assembly's directives on the issue because these are asked only for cases of entities that are outside the "Vienna formula." The formula relates to states that have been recognized as such by the UN or its agencies. Since Palestine was recognized as a state by the UN Educational, Scientific and Cultural Organization (UNESCO) last autumn, some argue that the UN Secretary-General should deem it is a state and accept its UN state accession. However, in international law, statehood is also a reality on the ground apart from a legal decision. If it is for international law to remain relevant in international developments, legal questions should also be posed on pragmatic terms. A state is not born only in the halls of decision-making bodies. The Montevideo Convention on the Rights and Duties of States sets the parameters for a state to actually exist: a permanent population, a defined territory and sovereignty expressed in the capacity to forge foreign relations. It is doubtful that the Palestinians have such sovereignty. Even if the Israeli occupation comes to an end, the Palestinians cannot fulfill the sovereignty requirement in a unifying way in both the Palestinian Authority-controlled West Bank and the Hamas-controlled Gaza Strip. While the Palestinian Authority is indeed the legitimate representative of the Palestinian people, recently the Hamas Prime Minister paid state visits to Turkey, Egypt and Iran. As such, the question of whether Palestine is a state has no easy answer. Thus, accordingly, the issue of Palestinian ICC membership cannot be compared with other cases, like that of the Cook Islands. This is because in the case of the Cook Islands, statehood was not under dispute. The UN Secretary-General, in his affirmative answer to their Rome Statute membership plea, used the fact that the Cook Islands had been admitted into the World Health Organization (WHO) as a supportive basis to an uncontested statehood claim. This is not the case with Palestine. While the legal instrument upon which the aforementioned "Vienna formula" postulation is based utterly supports its application in cases of contested statehood, a systematic reading of a widely procedurally dispersed international law does not leave us with any other possibility than to conclude that in such cases, the formula can act as a presumption for statehood. Subject to rebuttal by states which deem otherwise. In all cases, it cannot substitute for the regular UN state acceptance route. If it did, this would mean that states would be able to circumvent the procedure for UN state admission in bad faith by first gaining acceptance into one of the various UN agencies and bringing the UN's main organs — the Security Council and the General Assembly — before a fait accompli. At the same time, it is also true that the question of statehood does not necessarily have to be connected with UN membership. A state exists irrespective of whether it is also a UN member. However, in the case of Palestine, such UN connection is inevitable due to the decision of the Palestinians to request from the UN to decide on the issue in the realms of their plea on UN state membership. The ball is now in the UN's court. Through a centralized procedure, the UN will either beget a new state or reject Palestinian statehood ambitions. Again, because the issue has become so centralized, its answer will be provided solely by the procedures governing UN state admission and not by admission to UN agencies and other bodies that the Palestinians may achieve. Solon Solomon is a former member of the Knesset Legal Department, former member of the Knesset Legal Department in charge of international and constitutional issues. He is also the author of the book, The Justiciability of International Disputes: The Advisory Opinion on Israel's Security Fence as a Case Study. Suggested citation: Solon Solomon, Palestine Cannot Circumvent UN State Admission Procedures, JURIST - Hotline, May 13, 2012, http://jurist.org/hotline/2012/05/solon-solomon-palestine-statehood.php. This article was prepared for publication by Stephen Krug, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Saturday, May 12, 2012

LGBT Discrimination and International Enforcement 4:05 PM ET JURIST Guest Columnist Charles Radcliffe, Head of Global Issues at the Office of the UN High Commissioner for Human Rights, says that while international laws protect LGBT persons, proper enforcement is required to combat discrimination... After decades during which the words "sexual orientation" and "gender identity" were rarely uttered in formal, inter-governmental meetings at the UN, a debate is finally unfolding at the Human Rights Council in Geneva on the rights of lesbian, gay, bisexual and transgender (LGBT) people. The discussions at the Council have focused political attention on discriminatory laws and practices at the national level and on the obligations of states under international human rights laws to address such discrimination through legislative and other measures. A breakthrough came in June 2011 when the Human Rights Council approved the first ever UN resolution on human rights, sexual orientation and gender identity. The resolution was approved by a narrow margin but, significantly, received support from Council members from all regions. Its adoption paved the way for the first official UN report on the same subject, prepared by the High Commissioner for Human Rights. The report, issued in December 2011, found evidence of a pattern of systematic violence and discrimination directed at people because of their sexual orientation and gender identity, and called on states to take a number of measures designed to better protect the human rights of LGBT people. Its findings and recommendations were discussed at the Council on March 7, 2012. It was the first time a UN intergovernmental body has held a formal debate on the issue. Presenting the report to the Council, High Commissioner Navi Pillay challenged states to help write a "new chapter" in UN history dedicated to ending violence and discrimination against all people — irrespective of their sexual orientation and gender identity. Speaking via video, UN Secretary-General Ban Ki-moon described violence and discrimination against LGBT people as a "monumental tragedy for those concerned and a stain on our collective conscience". He also noted it is a violation of existing international human rights law. The legal obligations of states to safeguard the human rights of all persons, including those who are LGBT, are well-established under the Universal Declaration of Human Rights (UDHR) and subsequently agreed international human rights treaties. Everyone, regardless of his or her sexual orientation or gender identity, is entitled to enjoy the protections provided for by international human rights law. That includes respect of rights to life, security of person and privacy, the right to be free from torture, arbitrary arrest and detention, the right to be free from discrimination and the right to freedom of expression, association and peaceful assembly. The principle of non-discrimination underpins international human rights law and is embodied in the Charter of the United Nations, the UDHR and in core human rights treaties. Non-discrimination clauses in international instruments typically require that the rights set forth are made available to everyone without discrimination, and states must ensure that their laws, policies and programs are not discriminatory in impact. The specific grounds of discrimination referred to in the International Covenant on Civil and Political Rights and other human rights treaties are not exhaustive. For example, under Article 2 of the Covenant, each state party undertakes: "To respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." While sexual orientation and gender identity, like disability, age and health status, are not explicitly mentioned, the drafters intentionally left the grounds of discrimination open by using the phrases "such as" and "other status". In 1994, in the case of Toonen v. Australia, the Human Rights Committee, which is responsible for assessing state compliance with the provisions of the International Covenant on Civil and Political Rights, found Australia to be in breach of its duties under the Covenant for retaining a law that criminalized consensual, same-sex relationships. The Committee further confirmed that under the non-discrimination provisions of the Covenant, state parties are obligated to protect all individuals from discrimination on the basis of their sexual orientation. This position has since been reflected in general guidance issued by UN committees of experts tasked with supporting implementation of other human rights treaties, including those related to economic, social and cultural rights, children's rights, torture, and discrimination against women. States have a duty, not only to make sure that their own laws and policies do not discriminate directly or indirectly against LGBT people, but also to ensure that LGBT people are protected from discrimination practiced by third parties — such as employers, landlords, schools, health care facilities and other private sector organizations. Both the Human Rights Committee and the committee dealing with economic, social and cultural rights have called regularly on states to enact laws prohibiting discrimination on grounds of sexual orientation and have welcomed legislation that includes sexual orientation among the prohibited grounds of discrimination. A significant gap exists between law and practice. As the High Commissioner's report makes clear, the level of protection in place at a national level varies significantly from country to country. Some 76 states still have discriminatory criminal laws that punish individuals for engaging in consensual, same-sex relationships. In at least five countries the death penalty may apply under such charges. As long as these laws remain in force, discrimination and violence against LGBT people will continue unchecked. Even where homosexuality has been decriminalized, the legal framework often provides scant protection against discriminatory treatment. Only six countries embed guarantees of protection from discrimination on grounds of sexual orientation in their constitutions, while others have incorporated such guarantees into regional or provincial-level constitutions. In some case, general language on non-discrimination has been interpreted by courts as providing equivalent protection. Fifty-four states have laws in place prohibiting discrimination in employment based on sexual orientation, while a number of others have also banned such discrimination in access to, and provision of, goods and services. Relatively few states reference gender identity in domestic anti-discrimination laws. The High Commissioner's report concludes with a recommendation that all those states that have not done so already should enact "comprehensive anti-discrimination legislation" that includes discrimination on grounds of sexual orientation and gender identity among prohibited grounds and recognizes intersecting forms of discrimination. For all of the significance of recent developments at the United Nations, the global struggle to end violence and discrimination against LGBT people is just beginning. More dialogue is needed both among and within states. Necessary legislative changes will need to be accompanied in many places by a shift in public attitudes. For all the challenges, there is an air of hope and expectation. As UN Secretary-General Ban Ki-moon told the Human Rights Council in March 2012, a historic shift is underway. "We must tackle the violence, decriminalize consensual same-sex relationships, ban discrimination and educate the public," he told the assembled delegates. "I count on this Council and all people of conscience to make this happen. The time has come." Charles Radcliffe is a human rights lawyer and head of global issues at the Office of the United Nations High Commissioner for Human Rights in New York, NY. This article was written in a personal capacity and does not necessarily reflect the views of the Office of the United Nations High Commissioner for Human Rights. Suggested citation: Charles Radliffe, International Laws Need Enforcement to Combat LGBT Discrimination, JURIST - Hotline, May 12, 2012, http://jurist.org/hotline/2012/04/charles-radcliffe-un-lgbt.php . This article was prepared for publication by Leah Kathryn Sell , an assistant editor of JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org. Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Wednesday, May 09, 2012

Stigma and Suspicion: NYPD Surveillance of Muslims 8:05 PM ET JURIST Guest Columnist Samar Warsi, a Senior Volunteer Attorney for the Muslim Civil Liberties Union, says that the recent revelations regarding NYPD surveillance of Muslims and Muslim-affiliated groups has serious implications for civil liberties in the US... When law enforcement starts to make assumptions about an individual's propensity for terrorism based on whether that individual watches Al Jazeera or eats zabiha meat — it's time to worry. A string of articles by the Associated Press recently revealed the New York Police Department's (NYPD) unwarranted surveillance of numerous law-abiding American Muslims. According to the reports, citizens who had no criminal record and no current link to any criminal activity were routinely observed and analyzed by law enforcement. The stated goal of the supervision was to identify and avert potential terror plots. Law enforcement officers methodically set up surveillance programs throughout New York that monitored individuals at mosques, in Muslim neighborhoods, restaurants, parking lots, at work and even on school campuses. In fact, the NYPD followed the activity of Muslim Students Associations at over a dozen colleges throughout the state. Even in cases where there was no suspicious behavior to warrant documentation, police gathered information regarding an individual's ethnicity, political views and the number of times an individual prayed. Documents also reveal that plainclothes officers infiltrated mosques, recorded sermons and scrutinized the content and discussions on Muslim-run websites. New York Police Commissioner Ray Kelly and Mayor Michael Bloomberg have vehemently denied that Muslim groups were being targeted solely on the basis of religion, and insisted that the police department "only follows leads." Documents later confirmed that the Demographics Unit of the NYPD targeted "ethnic communities", particularly, individuals and groups with "ancestries of interest." The police department maintains, however, that no racial profiling occurred and it targeted not just "Egyptians and Syrians, but Lebanese, Palestinians, Yemenis, Moroccans, Algerians and 'Caucasians.'" The NYPD's approach seems to be operating under a preventive security paradigm and is reminiscent of the "Thought Police" in George Orwell's novel 1984 whose principle objective consisted of monitoring thoughts that could be potentially threatening to the state. In his description of such tactics, Orwell writes: There was of course no way of knowing whether you were being watched at any given moment ... it was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live--did live, from habit that became instinct--in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized. Orwell's words perfectly encapsulate the feeling of many Muslim individuals and groups who now simply presume that an FBI informant is present, monitoring and perhaps recording any given religious or political activity they are connected with. The rampant police spying is also in clear violation of the guidelines laid out in Handschu v. Special Services Division, which limit the scope of the NYPD's surveillance authority of lawful activity. These guidelines restrict the investigation of mere political activity unless the "NYPD has received 'specific information' that the person or group 'is engaged in, about to engage in or has threatened to engage in conduct which constitutes a crime.'" Essentially, otherwise lawful, political activity may only be recorded if it is connected to illegal activity. In this instance, the NYPD completely disregarded the safeguards set forth in the Handschu decree. Police officers indiscriminately collected data and compiled police records based on completely innocent activity even though the investigative findings conferred no benefit to the public or the state's overall security. No effort was made to obtain specific and individualized information about particular citizens or groups to legitimize the investigation but, rather, the common denominator of religion made every Muslim a possible target. The sole reason for surveillance was religion in direct contravention of the First Amendment protections afforded by the US Constitution. These police records were subsequently classified as "positive intelligence" meaning specific information regarding the individuals and groups would be entered and indefinitely kept on the FBI's intelligence database. The classification of ordinary, lawful behavior as positive intelligence is problematic and without justification. Recording random information about individuals and groups when there is no link to any potentially criminal activity serves no legitimate purpose and only has the effect of marginalizing that individual or group. FBI agents who subsequently view this information will presume it is related to a legitimate investigation, thereby subjecting innocent individuals to unwarranted suspicion and scrutiny. The dissemination of this information could be highly detrimental to an individual's reputation and overall standing in the community. Furthermore, the continued surveillance could amount to a violation of the Equal Protection Clause of the Fourteenth Amendment. Under the Fourteen Amendment, the US government must treat all persons equally before the law. There is no evidence suggesting the NYPD monitored the activities of other religious groups under the pretext of national security. The documents simply show law enforcement targeted American Muslims, and individuals of Arab, Middle Eastern and South Asian descent. The cornerstone of a free and democratic society is equality before the law and the absence of fear of being targeted arbitrarily. According to the RAND Corporation, there is "no statistically reliable link shown between ... psycho-sociological features, nationality, religion or birthplace and their propensity for terrorism." The unfettered surveillance practices of the NYPD seem to be endemic of a structural and institutionalized bias against Muslims in the US criminal justice system. It seems that the guise of national security and the War on Terror has given law enforcement a free pass to expand or limit the scope of their investigations on a whim. James Dempsey and David Cole argue in their book Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security that the latitude and "flexibility" afforded to law enforcement in investigating potential terror threats since September 11, 2001, has disproportionately affected Muslims, particularly through: Strategies aimed at preventing future terrorist acts included extending detention without charge, criminalizing membership of organizations deemed or judged to be terrorist organizations, criminalization of association and engagement with groups deemed to be terrorist organizations, freezing of assets and criminalization of a broad range of conduct, not necessarily linked to any violent act, but deemed nonetheless terrorist-related. It is critical to ensure that there is an effective and organized defense of the American Muslim community against arbitrary acts by any government entity. As civil rights lawyer, Shahid Buttar, recently noted: A combination of public apathy about the state of civil liberties, pervasive stereotypes of Muslims as terrorists, and government misinformation about the efficacy of counterterrorism policies has facilitated increased surveillance and investigative authorities commonly found in police states. It is foreseeable that unregulated police surveillance would naturally yield the result of uncovering more criminal activity. However, the framers of the Constitution deliberately and intentionally chose to limit the government's reach through constitutional guarantees such as freedom of religion and equal protection. This demonstrates a fundamental belief in personal liberty and the basic right to be free of unwarranted government scrutiny. It is a core tenet of the American justice system and a principle that serves to eliminate the dangers of arbitrariness in the law. It is vital to be cautious when government officials use glittering generalities such as "national security" and "counterterrorism" to legitimize acts and policies in clear contravention of basic constitutional guarantees. The danger with the repeated use of vague terms is that an increasing number of civil liberties can be stripped under their auspices. The concept of counterterrorism, while undeniably a compelling state interest, has usurped the conversation and created an overbearing umbrella under which every related topic must be viewed. In essence, it presupposes a baseline for every conversation and creates a dichotomous rhetoric that dictates a very limited range of "you're either with us or against us" debate. This divisive underlying assumption damages a society's ability to engage in free and uninhibited discourse and ultimately stunts honest and productive dialogue. Legitimate questions must be asked: What implications does the erosion of one group's civil liberties have on society at large? How can states guard against terror threats without compromising individual rights? What role do government policies play in shaping the perception of Islam within society? Threatening one group's civil liberties makes every other group in the nation vulnerable. Every individual and group has a vested interest in protecting the basic civil rights and integrity of the other group. We cannot allow a system in which a group's superficial traits are used to make assumptions about that group's predisposition for terrorism. There must be a collective outrage and demand for redress when any single group is affected by intrusive and unwarranted practices by law enforcement. The nation and each state should undoubtedly remain vigilant to any potential terror threats; however, investigations should be conducted within the boundaries set by law. Guarding against terror threats can be achieved without violating the rights of innocent Americans. The government has a duty to develop clear, consistent and accountable policies that focus on behavior rather than ethos and to apply laws evenly across the population. Samar Warsi is a Senior Volunteer Attorney for the Muslim Civil Liberties Union and a civil litigation attorney with the NNK Legal Group. She holds a BA in Political Science from McMasters University and graduated with a JD from Oklahoma City University School of Law. Suggested citation: Samar Warsi, Stigma and Suspicion: NYPD Surveillance of Muslims, JURIST - Hotline, May 9, 2012, http://jurist.org/hotline/2012/05/samar-warsi-muslim-surveillance.php. This article was prepared for publication by JURIST's professional commentary editorial staff. Please direct any questions or comments to them at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Friday, April 27, 2012

IACHR Guantanamo Case a Hallmark for Human Rights 11:04 AM ET JURIST Guest Columnist J. Wells Dixon, Senior Staff Attorney for the Center for Constitutional Rights, and attorney for Guantanamo detainee Djamel Ameziane, says that the IACHR's acceptance of his case is instrumental in promoting US responsibility for the well-being of detainees at Guantanamo Bay... On March 30, 2012, the Inter-American Commission on Human Rights (IACHR) issued a landmark decision accepting jurisdiction over the merits of a complaint filed by Djamel Ameziane, an Algerian detained at Guantanamo Bay for more than 10 years without charge or fair trial or a ruling on the merits of his habeas corpus petition. Filed in August 2008, the complaint alleges violations of Ameziane's rights under the American Declaration of the Rights and Duties of Man, including failure to adequately determine his legal status, arbitrary detention without charge or judicial review, torture, other unlawful abuse and similar harms. The IACHR also issued an admissibility report on April 3, 2012, which concludes that Ameziane's claims are colorable. The report adds sua sponte that the IACHR will consider at the merits stage whether Ameziane has suffered discrimination based on his national origin, culture or religion. This decision is important for several reasons. Ameziane's case marks the first time that an international body will review and decide whether the indefinite detention and abuse of exclusively Muslim men and boys at an offshore prison violates international human rights law. As an autonomous body within the Organization of American States, the IACHR's mission is to promote and protect international human rights in this hemisphere. The commission will examine not only the legality of Ameziane's decade-long detention, but also the conditions of his confinement and his fear of forcible repatriation to Algeria, where he could face persecution because of his status as a Guantanamo detainee as well as his minority Berber ethnicity. The IACHR will also examine the failure of the US to transfer him or any other detained man from the prison for more than a year following the enactment of the National Defense Authorization Act for 2011 (NDAA), the longest period of time without a transfer since the prison opened in January 2002. The IACHR will specifically examine the psychological harm to Ameziane caused by not knowing if or when he will be released, which is compounded by anxiety over the potential that he could be forcibly repatriated to Algeria; a fate that already befell two Algerian men, one of whom has since suffered terrible persecution. As much as he fears transfer to Algeria, Ameziane is hopeful that his IACHR case will help him achieve safe resettlement in a third country. At a public hearing before the IACHR in October 2010, and in subsequent communications, Ameziane has requested that the IACHR facilitate a dialogue between the US and other countries belonging to the Organization of American States toward his safe resettlement. The reality is that indefinite detention at Guantanamo will not end unless the international community offers safe homes for men, such as Ameziane, who cannot return to their countries of nationality for fear of persecution. To this end, Ameziane's case presents a unique opportunity for the IACHR to engage the US and encourage the Obama administration to certify him for transfer or, if necessary, authorize a "national security waiver" of the transfer restrictions for him under the terms of the NDAA. These actions may pave the way for the international community to make a humanitarian gesture and offer Ameziane protection. The ultimate outcome for Ameziane aside, his case presents a unique opportunity for the IACHR to establish and demonstrate its independence from the US. For the last 50 years, the IACHR has decided cases against states throughout the Americas, including Canada and the US. It has analyzed serious human rights violations throughout the region regardless of political and diplomatic pressure. There have been many cases before this body concerning a range of sensitive human rights issues, and this case about Guantanamo will prove no exception to the IACHR's mandate. The US would be well-advised to take Ameziane's case seriously and heed the IACHR's recommendations, which thus far it has been unwilling to do. Although the US disputes the IACHR's jurisdiction over Guantanamo, the IACHR's decision makes clear that Ameziane's case will go forward and be decided, whether or not the US believes it should. Further, although decisions by the IACHR may not be practically enforceable in the US, they are legally binding and respected by other countries. Should the US disrespect the IACHR's decision, it will have a more difficult time raising its own concerns through the IACHR. Finally, the IACHR's consideration of Ameziane's case is important because it reflects another step toward accountability for Guantanamo. Although the Obama administration has vigorously opposed any meaningful accountability for the harms caused by Guantanamo, other international jurisdictions are beginning to fill the void. Recently, in universal jurisdiction cases in Spain, civil suits by former Guantanamo detainees in the UK, a recent criminal indictment in Poland, and various reports issued from the UN and the EU, other members of the international community have begun to act and move toward providing some measure of accountability for Guantanamo because the US is unwilling or unable to do so on its own. Ameziane's IACHR case is simply the latest in what will undoubtedly be a continuing series of foreign judgments that will expose the horrors of Guantanamo and shame the US. The world is a small place, and US efforts to avoid accountability for Guantanamo will fail in time. Indeed, as much as the US may wish to avoid or forget about Ameziane and leave him stranded indefinitely behind the wire, he will be heard before the Inter-American Commission on Human Rights, and that international body will render its judgment. J. Wells Dixon is a Senior Staff Attorney for the Center for Constitutional Rights. He works on the Guantanamo Global Justice Initiative, and is one of of the attorneys representing Djamel Ameziane before the IACHR. He previously worked at Kramer Levin Naftalis & Frankel LLP, where he specialized in white collar criminal defense and securities litigation. Suggested citation: J. Wells Dixon, IACHR Guantanamo Case a Hallmark for Human Rights, JURIST - Hotline, Apr. 27, 2012, http://jurist.org/hotline/2012/04/wells-dixon-iachr-guantanamo.php. This article was prepared for publication by Leah Kathryn Sell, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to her at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Tuesday, April 24, 2012

Amending Title VII: Labor Organizing as a Civil Right (Part II) 2:04 PM ET JURIST Guest Columnists Richard Kahlenberg, a senior fellow at The Century Foundation, and Moshe Marvit, a labor and employment discrimination lawyer, say that it is time to amend Title VII of the Civil Rights Act to include the individual's right to organize a union... I an earlier article, we proposed that the right to organize or join a union should be included in Title VII of the Civil Rights Act. We did so not because Title VII represents an ideal statutory framework, but because it provides a private right of action that is far superior to remedies included under the National Labor Relations Act (NLRA). To be sure, no attorney or plaintiff who has ever had the pleasure of bringing a charge to the Equal Employment Opportunity Commission (EEOC) — the agency tasked with investigating and enforcing Title VII violations — would speak of the agency as a model of efficiency or effectiveness. It is understaffed and overworked, consistently backed up and is rarely able to resolve matters. Compared to the EEOC, the National Labor Relations Board (NLRB) — the agency tasked with handling all labor charges — is a model of efficiency. Though the NLRB's processes often take several years to bring resolution, and though the agency is quite limited in its ability to provide meaningful relief, it should be commended for conducting real investigations and prosecuting charges. The agency's staff are knowledgeable on the intricacies of labor relations and law, and sensitive to the needs of employers, unions and employees. If one were to judge the NLRA and Title VII only by the agencies tasked with investigating and prosecuting cases, the NLRA would easily be found to be the superior statute. However, the effectiveness of Title VII comes not from its requirement that aggrieved employees bring their charges to the EEOC, but from its provisions allowing a plaintiff to remove the charge from the EEOC after some time has passed, and pursue private litigation in federal district court. Removal of an employment discrimination matter to federal court is the route that many plaintiffs choose, and in that choice come the attendant procedural rights to pretrial discovery and a jury trial, and the possibility of being made whole through compensatory and punitive damages and attorneys' fees. These procedural and remedial provisions change the calculus for employers in terms of both violating the law, and whether to settle a case. Federal litigation is a costly and time consuming endeavor, leading employers to put in place and enforce internal procedures to limit and address employment discrimination. Add to this the stigma attached to allegedly violating an employee's civil rights, and most employers choose prevention and settlement rather than litigation. It should be emphasized here that the proposal is not to subsume all labor law into the employment discrimination framework. Only employment discrimination related to an individual's seeking to form or join a labor organizing, prohibited under Section 8(a)(3) of the NLRA, would be included under Title VII. This is important for several reasons. First, it is this right to organize that is most closely related to the fundamental rights implicated in the First Amendment rights of speech and assembly. Just as Title VII originally extended the Fourteenth Amendment provision of equal protection to private employment, this proposal would extend these First Amendment provisions to private employment. The proposed amendment largely leaves intact the collective rights framework of labor law. It provides individual rights to employees in their decision to join a union, which is often when they are already singled out by employees and punished or discriminated against as individuals. The proposal may also end up strengthening the NLRA by changing its role as a political football. Currently, the NLRA handles all labor matters, and as a result is constantly being threatened with defunding or weakening by those against unions. By allowing a segment of labor cases to proceed in federal court, some of the pressure on the NLRA will be relieved, and the agency will be attacked less as a result. Some may argue that the federal judiciary has traditionally not been friendly towards labor, and it is a mistake to entrust labor law to federal judges. There is some validity to this concern, but today's discrimination against employees for union organizing is so blatant that even conservative federal judges would have a hard time ignoring violations of the law. Unlike racial discrimination, which is often subtle, employers today fire union advocates in order to "send a message" of intimidation to other employees, an unambigous pattern of behavior that federal judges would have difficulty tolerating. Moreover, the benefits of federal litigation come not only through winning. The very process of federal litigation, including the possibility of extensive pretrial discovery, changes the employer's calculus in violating the law in opposing the union. CEOs will not be cheered at shareholders' meetings for opposing unionization if the result is hundreds of Title VII lawsuits, each with the possibility of compensatory and punitive damages and attorneys' fees. Furthermore, in the proposal detailed in our book, nothing would compel an employee to remove her charge to federal court if she wanted to follow the traditional NLRB route. The proposal allows for removal, but also leaves in place the existing processes under the NLRB. The benefits of switching to a civil rights legislative model for labor organizing — currently covered by Section 8(a)(3) of the NLRA — are multiple. First and foremost, the process of trying to pass such a legislative amendment is in line with the movement building that would be necessary for its passage. As opposed to the important, but technical, changes encapsulated in the Employee Free Choice Act (EFCA), labor organizing as a civil right is simple, powerful and can be broadly understood. These qualities make it ideal as a central concept and rallying cry for building a grassroots and broad-based movement that would push for legislative reform. The massive protests in Wisconsin and Ohio following the legislative attempts to strip collective-bargaining rights from public employees (which is essentially equivalent to stripping the right to unionize) showed clearly that employees have the right to organize with their fellow worker to bargain collectively with the employer is a powerful message that brings people together. Additionally, since the proposed amendment focuses on the individual's civil right, rather than on the collective rights of the organization, this proposal has the possibility of avoiding the contentious dichotomy of employers versus unions. Too many Americans have the view that unions are unnecessary today, because there are already enough protections in the workplace — a view that is only held by those who have never suffered unfair treatment in the workplace and explored their legal remedies for relief. Too many Americans have the misguided, but long held, view that unions are just another special interest that is not deserving of support of anyone beyond their membership base. Too many Americans have a negative, and similarly misguided, view of individual unions, such as the Teamsters, the Steelworkers or the teachers' unions, that have been unfairly branded as corrupt, wasteful or job-killing. A new attempt at labor law reform should not fall back into the trap of arguing for unions over employers, or get into a debate on the relative merits of various unions, but instead should remain focused on the individual's civil right to join a union. Richard Kahlenberg is a senior fellow at The Century Foundation. He writes primarily about a variety of education issues including primary and secondary education and affirmative action policies in higher education. He is an authority on teachers' unions, private school vouchers, charter schools, turnaround school efforts and inequality in higher education. Moshe Marvit is a labor and employment discrimination lawyer. Suggested citation: Richard Kahlenberg & Moshe Marvit, Amending Title VII: Labor Organizing as a Civil Right (Part II), JURIST - Hotline, Apr. 24, 2012, http://jurist.org/hotline/2012/04/kahlenberg-marvit-labor-ii.php. This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

 Monday, April 23, 2012

Nepal's Third Gender and the Recognition of Gender Identity 5:04 PM ET JURIST Guest Columnists Michael Bochenek, Director of Law & Policy for the International Secretariat of Amnesty International, and Kyle Knight, a Fulbright Scholar, say that Nepal's recognition of a third gender is an important fundamental right and the key to ensuring other fundamental rights for transgender individuals and those with a different gender identity... On December 27, 2007, the Supreme Court of Nepal issued a decision that has been called "arguably the single most comprehensive judgment affirming protections for gender identity anywhere in the world." The decision in Pant v. Nepal [PDF] found overwhelmingly in favor of the petitioners, a group of local lesbian, gay, bisexual, transgender and intersex (LGBTI) rights NGOs led by Sunil Babu Pant, president of the Blue Diamond Society, a sexual health and human rights organization founded in 2001. In addition to mandating that the government scrap all laws that discriminated based on sexual orientation or gender identity and establish a committee to study same-sex marriage policy, the court took the unique approach of establishing a third gender category. In legal terms, the third gender in Nepal — denoted on official documents as "other" — is an identity-based category for people who do not identify as either male or female. This may include people who present or perform as a gender that is different than the one which was assigned to them at birth. It can also include people who do not feel the male or female gender roles dictated by their culture match their true social, sexual or gender identity. There are other countries that have instituted third gender categories, but none nearly as comprehensive as Nepal. In 2005, India's third gender citizens were allowed to register for passports as "eunuchs," denoted by an "E." In 2009, an "E" designation was added to voter registration documents. Shortly after Nepal announced it would include a third gender category on its census, India followed suit. In 2011, the Unique Identification Authority of India, administering a new government citizen ID number system, allowed "transgender" as a third gender option. Australia and New Zealand both have "X" as an option in addition to "M" or "F" on passport applications. Bangladesh allows citizens to register to vote as "eunuchs." The Supreme Court of Pakistan also ordered the government to issue third-gender ID cards but, three years later, not a single one has been issued. Without a comprehensive model to follow, Nepal's LGBTI activists have worked tirelessly with the government bureaucracy to implement the category. In the broadest implementation of the category yet, the 2011 Nepal census was the world's first to allow people to register as a gender other than male or female. Enumeration was fraught with difficulties; the release of preliminary data with no mention of a third gender may mean that those who identified as such will be left out of meaningful data sets altogether. Part of the 2007 decision in Pant ordered the government to issue citizenship ID cards which allowed "third gender" or "other" to be listed. Since then, only two citizens, through relentless personal advocacy, have successfully received documents that reflect their true gender identity. Without access to these properly-gendered documents, citizens cannot open bank accounts or inherit property, among other rights. Individuals have faced harassment after officials noticed discrepancies between gender appearance and official documents. Several international law arguments can support Nepali activists in their fight for legal recognition. Official recognition of one's gender identity is required to guarantee the right to recognition as a person before the law. Recognition as a person before the law is both a right in itself, guaranteed in numerous human rights instruments, and a critical means for the exercise of other rights. More generally, recognition as a person is essential to reflect the dignity and worth of every person and reaffirm our common humanity, as reaffirmed by the Yogyakarta Principles. Reading the right to recognition as a person together with other rights strengthens the conclusion that states must give official recognition to one's self-defined gender identity. The state's refusal to record a person's self-identified gender identity on official documents touches, or very nearly so, the core of one's sense of self. Such an intrusion on the core self arguably violates the right to privacy. It also treats differently those whose gender identity does not necessarily correspond with the sex they were assigned at birth, and it does so without a reasonable basis in violation of the right to freedom from discrimination. Several cases from the European Court of Human Rights (ECHR) essentially apply this analysis. For instance, the ECHR found that Germany had failed to respect "the applicant's freedom to define herself as a female person, one of the most basic essentials of self-determination." The refusal of states to reflect chosen gender identity on documents may also violate the right to freedom of opinion and expression. The Yogyakarta Principles call on states to take all necessary measures "to ensure the full enjoyment of the right to express identity or personhood, including through speech, deportment, dress, bodily characteristics, choice of name or any other means." The jurisprudential notes [PDF] to the Yogyakarta Principles suggest that the drafters had in mind violence prompted by, and state criminalization of, particular choices of dress. But the designation of gender is an expression of identity or personhood of the same order as a choice of name. A state's refusal to accept a person's self-identified gender identity for identification documents effectively compels that person to express another identity. Forcing individuals to identify publicly as a gender other than the one with which they identify may also violate freedom of conscience. The innate nature of gender identity makes it more akin to a matter of conscience than one of opinion or expression. As with religion and belief, the right to freedom of thought and conscience is absolute; it cannot be limited in any way. However, outward manifestations of religion or belief can be restricted if the limitations are "prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others." For that reason, the distinction between holding and manifesting a thought, matter of conscience, religion or belief is important. A requirement to indicate on identity documents a gender different from one's actual gender identity is arguably a form of coercion to hold or express a particular thought, matter of conscience or belief. But even if such a requirement is read as controlling only the manifestation of thought, conscience or belief, the requirement would not appear to pass the test of necessity. The fact that international standards permit travel on passports that do not indicate sex casts considerable doubt on any public safety or public order justification; nor are there any compelling public health or moral interests in forcing people to bear documents listing a gender that does not correspond to their gender identity. In addition, official acknowledgement of a third gender status may serve as a check on official and private acts of harassment and violence. The Committee Against Torture has noted that "actual or perceived non-conformity with socially determined gender roles" increases the risk that an individual will be subjected to harassment and violence. Reports of violence at the hands of police in Nepal and elsewhere in the world against those who do not conform to such gender roles bear out the committee's observation. Finally, official acknowledgement has positive implications for other human rights. Although the lack of accepted identity documents should not preclude the enjoyment of other rights, the reality is that identification is often required to attend school, hold a job, open a bank account, receive medical care, vote and conduct many other aspects of daily life. The lack of legal recognition can therefore lead to infringements on the rights to an education, to work, to an adequate standard of living, to the highest attainable standard of health, and to political participation, among other rights. It can increase the risk of exploitation and can impede the right to freedom of association. Implementing a third gender category is not the only way to legally recognize and protect gender identity. However, Nepali activists' experience advocating for and implementing the category demonstrate it to be a meaningful, rights-based recognition and protection measure. Michael Bochenek is Director of Law & Policy at the International Secretariat of Amnesty International. Kyle Knight is a 2011-2012 Fulbright Scholar completing his research in Nepal. This article reflects the views of the authors and not necessarily those of Amnesty International. Bochenek and Knight have written a more in-depth analysis, Establishing a Third Gender Category in Nepal [PDF], in the Emory International Law Review. Suggested citation: Michael Bochenek & Kyle Knight, Nepal's Third Gender and the Recognition of Gender Identity, JURIST - Hotline, Apr. 23, 2012, http://jurist.org/hotline/2012/04/bochenek-knight-gender.php. This article was prepared for publication by Zach Gordon, an assistant editor for JURIST's academic commentary service. Please direct any questions or comments to him at academiccommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST

Florida Supreme Court Erred in Drug Dog Ruling 3:04 PM ET JURIST Guest Columnists E. Duncan Getchell, Jr., Solicitor General of Virginia, and Michael Brady, Assistant Attorney General of Virginia, argue that the Florida Supreme Court erred in its decision on the reliability of narcotics sniffing dogs and urge the US Supreme Court to overturn it... On March 26, the US Supreme Court granted the State of Florida's Petition for Writ of Certiorari in Florida v. Harris from a decision of the Supreme Court of Florida. That decision spoke to the state's evidentiary burden to satisfy the Fourth Amendment's requirement of probable cause to search a vehicle following a canine alert. When this case goes before the Supreme Court during October Term 2012, the Court will consider squarely what evidentiary foundation is needed to show that an alert by a narcotics-detection dog provides an officer a reliable basis for probable cause to search a vehicle. In Illinois v. Caballes, the Court determined that a dog sniff that gives rise to probable cause to search a vehicle where the dog is well trained and "'does not expose noncontraband items that otherwise would remain hidden from public view,' ... during a lawful traffic stop ...[and] does not rise to the level of a constitutionally cognizable infringement." In Florida v. Harris, during a valid traffic stop of the defendant for driving with an expired registration tag, a canine officer with the Liberty County, Florida Sheriff's office deployed his canine partner, Aldo, to sniff the vehicle's exterior. Aldo alerted on the driver's side door handle, leading the officer to search the vehicle's interior. This resulted in the discovery of supplies used to manufacture methamphetamine, which Harris, after arrest, admitted to making and using. After his motion to suppress the evidence at trial was denied, Harris pleaded no contest to and was convicted of possessing the restricted chemical pseudoephedrine with intent to use it to manufacture methamphetamine, in violation of state law. The Supreme Court of Florida's decision on appeal was out of the ordinary: "[S]pecifically address[ing] the question of what evidence the State must introduce in order ... for the trial court to adequately undertake an objective evaluation of the officer's belief in the dog's reliability as a predicate for determining probable cause," that court concluded "that when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person." Rather, the state "must present all records and evidence that are necessary to allow the trial court to evaluate the reliability of the dog." Whether reliability is challenged or not, the state must present the following evidence to permit the trial court to perform "a totality of the circumstances" review of the evidence supporting "the officer's belief in the dog's reliability as a predicate for determining probable cause": "evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability." Furthermore, "the State must explain the training and certification so that the trial court can evaluate how well the dog is trained and whether the dog falsely alerts in training (and, if so, the percentage of false alerts)." Also, the state must "keep and present records of the dog's performance in the field, including the dog's successes (alerts where contraband that the dog was trained to detect was found) and failures ('unverified' alerts where no contraband that the dog was trained to detect was found)." Finally, "the State must present evidence of the experience and training of the officer handling the dog." The Florida Supreme Court reasoned that admission of evidence regarding a canine's "track record of giving accurate information in the past" was necessary by noting the inability to cross-examine a dog and by analogizing to "situations where probable cause to search is based on the information provided by informants." The court cited "the potential for false alerts, the potential for handler error, and the possibility for alerts to residual odors" as grounds for concluding that the fact of a canine's training and certification provide an inadequate basis for probable cause following an alert. Accordingly, the court concluded that "a necessary part of the totality of the circumstances analysis in a given case ... is an evaluation of the evidence concerning whether the dog in the past has falsely alerted, indicating that the dog is not well-trained, or whether the alerts indicate a dog who is alerting on a consistent basis to residual odors, which do not indicate that drugs are present in the vehicle." The court also noted that "[i]n particular, ... it is important to include ... how often the dog has alerted in the field without illegal contraband having been found." In this case, the Florida Supreme Court held that there was inadequate evidence to establish that the officer had a "reasonable basis for believing that Aldo was reliable at the time of the search" and that "Aldo's alert ... indicated a fair probability that drugs would be found in the vehicle." The court cited the paucity of "the record ... on the details of Aldo's training," on "the criteria necessary for the dog and handler to pass the course and obtain 'certification,'" the lack of "any testimony regarding Aldo's ability to detect residual orders," and the lack of "a complete picture of Aldo's [field] performance," specifically the "percentage of unverified alerts." As the court concluded that other facts did not show "probable cause that there were illegal drugs inside the vehicle," it ordered that the evidence be excluded. The approach in Harris augurs poorly for the future use of canines by law enforcement personnel. First, the decision's reliance on the informant analogy is misplaced as dogs do not lie. Second, putting aside the substantial costs, both in dollars and convictions, that this holding imposes, Harris places substantial administrative burdens on law enforcement deploying canines with uncertain benefit to deterring unconstitutional police conduct. As it stands, Florida's officers, before deploying a trained and certified narcotics-detection dog, must now consider whether they can document, in great detail, their dog's reliability in sniffing out contraband. This burden presents problems to the use of dogs with many years of field success, but little documentation, and newly trained and certified dogs that lack a field record. The attendant uncertainty created will not abate once a dog has been found reliable in one proceeding, as the multi-factor analysis used in Harris offers no assurances of uniform results. In addition, there is little reason to believe that judges possess the requisite expertise to evaluate the adequacy of canine training programs, even if provided the information required by Harris. These results flow from the the Harris majority's flawed grasp of the first principles of probable cause. To establish probable cause, it must merely be shown that the officer had "a substantial basis" on which to conclude that "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Despite reciting this principle in their opinion, the Florida Supreme Court plainly failed to follow it. In addition, the court failed to perform the required analysis of burdens and benefits attending application of the exclusionary rule to a good faith search by a canine officer in its decision, as outlined in Davis v. United States. Led by these considerations, most courts have rejected the framework for proving the reliability of the narcotics-detection dog adopted by the Florida Supreme Court, refusing to require the state to keep and produce extensive evidence of each dog's reliability, down to the percentage of positive and "false" alerts and the precise circumstances of the dog's training. The certain obstacles raised to the venerable practice of canine use in law enforcement by the Florida Supreme Court's decision and the uncertain deterrence benefits to be gained by its application bodes well for Florida's appeal. E. Duncan Getchell, Jr., is the current Solicitor General of Virginia and the former chair of the appellate practice group of McGuireWoods, LLP. He is a fellow of the American Academy of Appellate Lawyers and a Permanent Member of the US Court of Appeals for the Fourth Circuit Judicial Conference. Michael Brady is an Assistant Attorney General in Virginia's Office of the Solicitor General. He was a law clerk for Chief Justice Cynthia Kinser of the Supreme Court of Virginia and graduated from The University of Texas School of Law. Suggested citation: E. Duncan Getchell, Jr. & Michael Brady, Florida Supreme Court Erred in Drug Dog Ruling, JURIST - Hotline, Apr. 23, 2012, http://jurist.org/hotline/2012/04/getchell-brady-florida-canines.php. This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org Opinions expressed in JURIST's Hotline are the sole responsibility of their authors and do not necessarily reflect the views of JURIST's editors, staff, or the University of Pittsburgh. Link | how to subscribe | © JURIST