Human Rights and Genocide Clinic

The right to determine one’s identity is a cornerstone principle of minority rights. International human and minority rights standards provide that individuals have unique ways of identifying with ethnic or racial minorities and that the means of that self-identification may not be determined by the State.   

An integral part of the right to self-identification is the right to choose ones name. Both international human and minority rights law recognized that a name is an integral part of an individual’s personal identity, family linkages and self-identification.
 
The HRGC, in collaboration with Minority Groups International (“MRG”), assists clients with cases alleging racial/ethnic discrimination in the right to choose one’s name. One such case involves the Turkish government’s denial of the right of a Turkish citizen to register his Kurdish name. The second case involves a Greek citizen who has been denied the right to register his Macedonian surname. The Turkish case is pending before the European Court of Human Rights. The Greek case is currently pending before the appeal court in Greece.

• Viability of the Rainbow Case Before the European Court of Human Rights
   

Yean y Bosico v. Dominican Republic  
The HRGC assisted MRG with an amicus brief before the Inter-American Commission of Human Rights. The Center for Justice and International Law and the Movimiento de Mujeres Dominico-Haitianas, filed a complaint before the Inter-American Commission for Human Rights on behalf of two young girls who were denied birth certificates. Without official recognition of their birth in the country, our clients and hundreds of thousands of other Dominican-born children of Haitian ancestry are denied the right to attend public school and are vulnerable to arbitrary expulsion. In 2003, the case was referred to the Inter-American Court of Human Rights.

Our amicus focused specifically on the effects of the denial of the right to education.

On October 7, 2005 the Inter-American Court issued a historic ruling recognizing the right of Dominican-born children of Haitian ancestry to nationality and education. The Inter-American Court found the Dominican Republic had discriminatorily denied our clients their birth certificates and violated their right to nationality, equal treatment, a name, among other rights. The binding ruling ordered the Dominican Republic to reform its birth registration system, open primary schools to all children regardless of their race, ethnicity or legal status, hold a public ceremony to recognize responsibility for the violations and ask forgiveness from the victims in addition to other measures.

• Case of Yean and Bosico Children v. The Dominican Republic

• Caso de las Niñas Yean y Bosico v. República Dominicana

Discriminatory deprivation of citizenship specifically targeting disfavored minority groups is a global problem, which often results in statelessness. Approximately 11-15 million people around the world are not considered to be a national of any state. Individuals who are ‘stateless’ generally are denied the most basic human rights protections, including the right to education, the right to own property, and the right to freedom of movement. Furthermore, individuals may incur substantial harm as a result of the inability to attach either psychologically or legally to the place where she has a genuine and effective link.  

HRGC has been engaged in research and advocacy around the issue of discriminatory deprivation of citizenship since 2006. Our goal is to assist in the development of international norms that would reduce discriminatory policies and citizenship restrictions leading to statelessness.  

Iraq

Since the overthrow of Saddam Hussein in 2003, Iraq has made great strides to rebuild its legal framework. As part of its Minority Rights Project, the Institute for International Law and Human Rights (“Law and Rights”) works with government and NGO partners in Iraq and beyond to ensure that key legislation is drafted and enacted in a way that reinforces respect for minority rights and the rule of law. This fall, Law and Rights commissioned the HRGC to examine Iraqi citizenship laws and the extent to which, if at all, they discriminate against Iraqi minority groups.

Utilizing a public international law lens, including minority rights, and case studies, the report analyzed the normative international and regional law framework relevant to the right to citizenship and provided a set of recommendations for Iraqi parliamentarians and civil society leaders, including amendments to the Iraqi legal framework and changes to the implementation strategies to create a robust and effective citizenship regime.

In response to this report, HRGC has been invited to present their findings and participate at a conference hosted by Minority Rights Group International (MRGI), the leading international human rights organization working to secure rights for ethnic, religious and linguistic minorities and indigenous people around the world. The conference is tentatively scheduled to take place in early 2011 in Erbil in Northern Iraq and will coincide with the press release of MRGI’s 2010 report, “Still Targeted: Continued Persecution of Iraq’s Minorities,” examining the situation of Iraqi minorities, in territory controlled by the Kurdistan Regional Government (KRG) and in disputed areas bordering KRG.

The Justice Initiative v. Côte d’Ivoire

In 2006, the Open Society Justice Initiative (OSJI) submitted a communication to the African Commission on Human and Peoples’ Rights on behalf of Ivoirians who have suffered unlawful discrimination by agents of the state of Côte d’Ivoire. With the assistance of HRGC, a revised submission on admissibility was submitted in May, 2009. In fall, 2010, HRGC assisted in the preparations for an admission on the merits of the case.

Between 1960 and 1990, the thriving economy and generous immigration policies of Cote d’Ivoire attracted thousands of immigrants from neighboring states. Yet following the collapse of the Ivoirian economy, leading politicians manipulated anti-foreigner sentiment for their own political gain. This sentiment, dubbed “Ivoirité”, was ultimately codified in the Ivoirian nationality law, and through its enforcement, denationalized those suspected to be “non-Ivoirian.” Once stripped of their citizenship, individuals were unable to obtain identity papers or own land, and subject to violent discrimination. 

In 2002, Côte d’Ivoire became entangled in a civil war, resulting in heightened levels of violence toward suspected immigrants and their supporters.  The civil war in Côte d’Ivoire and the atrocities committed against the suspected “foreign” minority community in the North is an example of how discriminatory deprivation of citizenship, rooted in ethnic intolerance and political machination, can evolve into full fledged conflict and near-genocide. 

HRGC developed legal arguments with our colleagues at OSJI, prepared memoranda of law and assessed procedures implemented under the Ouagadougou Peace Agreement in 2007 for issuing new national identity cards in connection with the October 2010 presidential election. Although these procedures were considered by Cote d’Ivoire’s major political parties to be a solution to the persistent nationality issue, the byzantine voter registration process failed to provide documentation to all those who lacked papers, and most importantly, failed to clarify an overwhelming vagueness at the heart of the Ivorian nationality code – specifically, who is or is not Ivorian, and by what criteria is that so.

The HRGC prepared a genocide early warning analysis on Ethiopia. Among others, the paper was shared with the UN Office of the Special Advisor on the Prevention of Genocide and the Berne Advisory Task Force.

• Early Warning in Ethiopia: Analysis

An excerpt of the paper was published by the Institute for the Study of Genocide (ISG).  The excerpt is located on page 7.
 

• The ISG Newsletter
  Number 39 - Winter 2007/2008
  Helen Fein, Editor

“He did not need bullets. He used other weapons: rapes, hunger and fear.”

Louis Moreno-Ocampo
Chief Prosecutor, International Criminal Court
Speaking about the genocide being committed by the Sudanese President in Darfur [1]

Many unfolding genocides have gone unrecognized and have not been prevented because each death, each massacre, was treated as if it were a photograph, a snapshot to be compared in that instance against the definition of genocide. Genocide, however, is not an event.  Genocide can be waged by a wide array of methods beyond direct and violent murder. In fact, there are more protracted, more ambiguously lethal means of extermination than machetes, guns or gas chambers. Many victims of historical genocides die from slower, indirect and less immediately deadly methods of annihilation than outright murder. This study argues that genocide is a process that can unfold over several years, even decades. It proposes a notion of “genocide by attrition” that takes the usual linear (causal) accounts of mass death as its starting point and expands on them to suggest a more complex picture of genocidal processes. More specifically, this study aims to illuminate the concept of “genocide by attrition” in its proper legal and historical contexts, and identify indicators thereof through the lens of existing international human rights laws and obligations so as to assist legal, humanitarian and political actors in the difficult task of genocide identification and prevention. The paper will draw on empirical evidence from various cases of genocide by attrition to identify a set of attributes that allow a fresh rethinking of the process of genocide and prevention tools.

This paper was distributed to relevant policy actors and presented at multi-disciplinary conferences. In 2009 it will be published as an Occasional Paper by the Program in Holocaust and Human Rights Studies at Cardozo Law School.

[1] New York Times, A10, July 15, 2008

Finci v. BiH
The HRGC represents a member of the Jewish community in BiH who is denied the right to stand for election to the office of the presidency or the upper house of parliament in Bosnia & Herzegovina. The HRGC along with its partner MRG brought the matter to the European Court of Human Rights (ECHR) in Strasbourg. The HRGC is currently awaiting reply papers from the government of Bosnia and Herzegovina.

This outcome of this case has far reaching implications for Bosnia and Herzegovina. The International Crisis Group said this about the case, “If the court rules in favour of Finci, it would throw Bosnia into a constitutional crisis that would affect everything from voting systems to personnel appointments, to the entity system of government and how the country’s highest governing institutions operate.”

This case is part of the HRGC’s sustained engagement on the issue of discrimination in participatory rights in Bosnia and Herzegovina. This work has included organizing meetings/workshops with partners in Sarajevo, Bosnia & Herzegovina, filing shadow reports before the Human Rights Committee and the Committee on the Convention on the Elimination of Racial Discrimination, and drafting recommendations for the ongoing constitutional reforms in Bosnia and Herzegovina.

Pleadings

• Finci Application to the European Court of Human Rights
• ECHR Statement of the Facts
• Joined Case - Government Observations on Admissibility and Merits
• Joined Case - Finci Reply to Government Observations on Admissibility and Merits 
• Joined Case - Sejdic Reply to Government Observations on Admissibility and Merits
• Additional Government Observations on the Claims for Just Satisfaction
• Additional Government Observations on Grand Chamber Proceedings

Third Party Interventions

• Third Party Intervention - AIRE Centre 
• Third Party Intervention - OSJI
• Third Party Intervention - European Commission for Democracy Through Law

Decision of December 22, 2009
 

Rather than criticized as imperfect substitutes for accountability, truth commission are increasingly seen as important elements of a comprehensive transitional justice process.  Truth commissions are a relatively new invention, which vary widely from country to country and meet with varying degrees of success. Human Rights Watch asked the HRGC to prepare a comprehensive overview of truth commissions. To assist relevant actors engaged with the truth commission process, the paper sets out the results of research into the salient factors that contribute to an effective truth commission.  The paper draws conclusions from the respective choices made at each stage of the formation and operation of ten truth commissions. It then compares the strengths and weaknesses of these ten commissions in order to arrive at a set of recommendations concerning the establishment and functioning of an effective truth commission.

• Truth Commission Report
   

Since the 2003 overthrow of the Saddam Hussein regime, Iraq has made great strides in rebuilding its legal framework. It has drafted a Constitution, and a process for review is underway. There is, however, an overwhelming need for implementing legislation that can add coherence and functionality to the new Iraqi state, and codify respect for human rights, minority rights and the rule of law. Building and reinforcing this legal framework represents one of the most crucial governance challenges confronting the Government of Iraq.

In cooperation with the Institute for International Law and Human Rights (IILHR) the HRGC will work with legislative drafters, government officials, activists, and Iraq’s legislative branch to ensure that key legislation is drafted and enacted in a way that reinforces respect for human rights and the rule of law. The IILHR is one of the few foreign NGO’s that has an office in Baghdad.

By helping to bring the definition of genocide to the attention of the Canadian Supreme Court, the Human Rights and Genocide Clinic has helped to ensure that those individuals responsible for grave human rights violations will not find safe haven in Canada.

On June 28 2005, the Canadian Supreme Court ruled, in the case of Mugesera v. Citizenship and Immigration Canada, that a Rwandan politician who gave a passionate speech inciting genocide can be deported to his home country for committing crimes against humanity.  The Human Rights and Genocide Clinic joined forces with the International Human Rights Law Clinic at the University of Toronto to write an intervener brief. Specifically, the Clinic was asked to write on the meaning of incitement to genocide in international law.  It is notable that international law played an important role in the Supreme Court’s decision.

The HRGC will be providing research and litigation assistance to counsel for victims of the Dafur conflict before the International Criminal Court.

The HRGC provides ongoing research support to the Office of the Prosecutor at the International Criminal Tribunal for the Rwanda.

The HRGC filed an amicus brief on behalf of the International Association of Genocide Scholars before United States District Court of Massachusetts. The brief was filed in support of the defendants, the Massachusetts Department of Education, et. al. motion to dismiss a first amendment claim brought by a students, a teacher and the Turkish American Association. Plaintiffs allege that their First Amendment rights were abridged by the school boards refusal to include ‘contra-genocide’ material in its guide to teaching on the Armenian genocide.

The brief concerns fundamental issues of freedom of expression, the importance of historical memory, and the damaging effects of genocide denial in the U.S. and abroad.  The motion is currently pending.

• Griswold v. Driscoll amicus brief
• Griswold v. Discroll Decision of the Court of Appeals

The HRGC filed an amicus brief on behalf of the International Association of Genocide Scholars (IAGS) before the United States District Court of Minnesota. The brief was filed in support of defendants, the University of Minnesota, the President of the University of Minnesota and the Director of the Center for Holocaust and Genocide Studies (CHGS), motion to dismiss a First Amendment claim brought by a student and the Turkish Coalition of America.

Plaintiffs allege that their constitutional rights to free speech, equal protection and due process were abridged by the inclusion of the TCA website, which espouses a "contra-genocide" viewpoint, on a list of "unreliable websites" maintained by CHGS. Plaintiffs also asserted state law claims for defamation.

The brief concerns fundamental issues of academic freedom and the damaging effects of genocide denial in the U.S. and abroad.

On March 30, 2010, the United States District Court of Minnesota granted Defendants' motion to dismiss.

• TCA v. University of Minnesota, et al Amicus Brief
• TCA v. University of Minnesota, et al Decision of the District Court