Prisoners' Rights

The Prison Project of Human Rights Watch continued to monitor the treatment of U.S. prisoners. In April 1993, Human Rights Watch wrote to Attorney General Janet Reno, drawing her attention to

three U.S. prison matters: (1) the case of federal inmate Brett Kimberlin, who was denied access to the press and placed in administrative detention after alleging during the 1988 presidential campaign that he had sold marijuana to then vice-presidential candidate Dan Quayle; (2) the administrative transfer of twenty inmates from the Lewisburg, Pa. penitentiary to the super-maximum security facility at Marion, Ill.; and (3) new regulations imposing a variety of restrictions on the use of telephones by federal inmates.

In September 1993, a Justice Department report of its investigation into the Kimberlin case was made public. This report admitted that Kimberlin had been subject to "disparate treatment," that his placement in detention had been due to his attempts to contact members of the press, and that the personal involvement of Bureau of Prisons director J. Michael Quinlan, who canceled a scheduled Kimberlin press conference and ordered Kimberlin's special detention, was "quite unusual." Nonetheless, the report denied that political considerations played any role in Kimberlin's extraordinary treatment.

In October, Human Rights Watch again wrote to Attorney General Reno, renewing its request that she address the Marion transfers and restrictive new telephone regulations.

Death Penalty

In September 1993, Human Rights Watch wrote to Governor Tucker of Arkansas, urging him to grant a stay of execution to Barry Lee Fairchild, a mentally retarded man who was found guilty of murder on an accomplice-liability theory. In addition to Fairchild's low mental capacity, reports indicated that his confession may have been coerced through physical abuse by sheriffs investigating the murder. On the day he was to be executed, September 22, a federal district court judge vacated Fairchild's death sentence.

Human Rights Watch collaborated with the American College of Physicians, the National Coalition to Abolish the Death Penalty,and Physicians for Human Rights in producing a report on physician participation in capital punishment in the United States. This report provided a brief history of physician involvement in U.S. executions and surveyed current state laws and practices and the responses of medical associations. Most significantly, the report explored the ethical implications of physician involvement in capital punishment, and recommended bringing laws into compliance with prevailing medical ethics, which forbid physician participation in executions. The report was scheduled for a December 1993 release.

Asylum Reform Proposals

During the year, the rights of individuals with legitimate asylum claims were threatened by proposals made by the Clinton administration and by legislation introduced in Congress. Those proposals sought to "streamline" and "expedite" the asylum process by turning back individuals without proper documentation at points of entry if they could not prove their claims at immediate airport interviews; they would also have reduced opportunities for asylum-seekers already within the U.S. to present their case. Human Rights Watch warned lawmakers that many provisions of these proposals ignored internationally recognized standards and treaty obligations protecting asylum-seekers.

In response to the public outcry over criminal acts carried out by individuals in the United States illegally-some of whom may have abused the asylum process-dozens of bills were introduced in Congress, and reforms were proposed by the Clinton administration. In letters criticizing these initiatives, Human Rights Watch argued that the asylum system itself was basically sound but not functioning properly due to mismanagement and inadequate funding. As a result, individuals were able to abuse the system-and might continue to do so even if improvements were made.

Any modifications to the asylum system must comply with customary international law and international treaties which prohibit refoulement, the forcible repatriation of any refugee whose life or freedom would be threatened. The 1951 Convention on the Status of Refugees and its 1967 Protocol, which the United States has ratified, provide:

No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

This prohibition of refoulement must be the central principle in any asylum reform plan. Human Rights Watch believes that the only way to ensure compliance with the refoulement prohibition is by granting individualized hearings in which asylum applicants have a fair opportunity to prove possible persecution and a right of appeal.

Among the objectionable provisions of pending legislation were: overly rigorous or ambiguous standards of persecution; arbitrary time limits restricting an asylum-seeker's right to filea claim; restrictions on independent or judicial review of denied claims; and return of asylum-seekers stopped at points of entry to countries through which they traveled on their way to the United States, even though these countries might or might not protect refugees.

High Seas Interdiction

In 1993, the Clinton administration continued the Bush policy of interdicting and summarily repatriating all Haitians encountered on the high seas. As discussed below, Human Rights Watch participated in litigation challenging this practice, on the grounds that it violates the international legal principle of nonrefoulement.

A disturbing new development in U.S. interdiction policy occurred in July 1993, when the Coast Guard intercepted three boats carrying a total of 659 Chinese immigrants in international waters off the coast of Mexico. Allowing the Chinese into U.S. territory would have made it possible for them to apply for political asylum. To avoid this, the United States asked the Mexican government to accept the immigrants just long enough to deport them back to China. The U.S. offered to pay the cost of the deportations, which Mexico refused.

In letters to Presidents Clinton and Salinas, Human Rights Watch urged that the prohibition against refoulement be observed and that the detainees be screened to ensure that those facing possible persecution on political and other grounds not be forcibly repatriated to China. Reports that previous deportees had been subjected to months of "reeducation" and other forms of persecution increased the concern. Human Rights Watch argued that the refoulement prohibition is binding on both Mexico and the United States as a matter of customary international law; furthermore, the U.S. has ratified the Protocol Relating to the Status of Refugees, which codifies the prohibition. In its letter to President Clinton, Human Rights Watch explained the implication of this.

What the U.S. by its own interpretation of international law cannot do directly, it should not be able to do indirectly by enlisting the Mexican government as an intermediary. Otherwise, the U.S. government sends the signal that international refugee standards can be avoided simply by getting another government to do the dirty work. Refugee law would be crippled by such subterfuge.

Approximately one-third of the detainees were given a cursory screening for refugee status (in the form of a questionnaire) by the United States while still in international waters. Mexico then allowed the boats to enter its territory. Thirty crew members were arrested for trafficking in human beings. All but two of the other occupants of the boats were deported to China. Both were allowed to enter the United States, where they applied for political asylum.

Litigation in the U.S. Courts

In 1993, Human Rights Watch continued its active involvement in U.S. civil litigation involving the application of internationalhuman rights law.

· Doe v. Karadzic. This class action suit was brought against Bosnian Serb military commander Radovan Karadzic in February 1993. The suit charged Karadzic with genocide, war crimes and crimes against humanity, summary execution, torture, cruel, inhuman or degrading treatment, wrongful death, assault and battery, and intentional infliction of emotional harm. The two named plaintiffs, Jane Doe I and Jane Doe II, are teenage Muslim women from Bosnia and Hercegovina currently living as refugees in Zagreb, Croatia. Jane Doe I was allegedly raped by at least eight Bosnian Serb soldiers, beaten and slashed with a knife; Jane Doe II and her younger brother were allegedly forced to witness the rape of their mother by Bosnian Serb soldiers, who then allegedly murdered her. Their claims were representative of the entire class, estimated to number in the thousands and consisting of all women and men who had suffered these and similar abuses at the hands of the Bosnian Serb military forces acting under the command and control of defendant Karadzic. The plaintiffs argued that Karadzic knew or should have known that his forces were committing these abuses, that he failed to prevent or punish these abuses, and that he was liable to the class members under international law, as well as two U.S. laws-the Torture Victim Protection Act and the Alien Tort Claims Act.

Filing an amicus curiae brief in response to Karadzic's motion to dismiss for lack of jurisdiction, Human Rights Watch argued that the United States had a vital interest in redressing the atrocities alleged. The international conventions on which the plaintiffs base their claim, including the Genocide Convention, the Geneva Conventions and the Torture Convention, provide States parties with not only a compelling interest but an affirmative obligation to hold violators legally accountable for their human rights abuses. Federal law, including the Torture Victim Protection Act, underscores this interest and obligation. In addition, customary international law provides universal jurisdiction for allegations of genocide and war crimes. Under the doctrine of universal jurisdiction, neither the nationality of the perpetrator or the victims nor the location of the crime constrains jurisdiction, since the perpetrators of such atrocities are enemies of all humankind.

· Haitian Centers Council v. McNary. United States treatment of Haitian refugees was litigated in two related cases beginning in 1992. One case challenged the discrimination against HIV-positive Haitian asylum-seekers, who were being held indefinitely at Guantánamo Bay Naval Base under adverse conditions and without access to attorneys, visitors, telephone calls, or letters. The second case challenged the "Kennebunkport Order" issued by President Bush and continued under President Clinton despite earlier vows to the contrary. This policy called for the immediate and summary repatriationof all Haitians interdicted on the high seas, without screening to exclude refugees. Human Rights Watch submitted amicus curiae briefs in both cases. In June 1993, the Supreme Court overturned a Second Circuit decision and approved the Kennebunkport Order. In their brief to the court, Human Rights Watch had argued that this blanket policy of forcible repatriation violated the international law of non-refoulement, which prohibits the forcible return of refugees to countries where they face persecution. Human Rights Watch issued a press release in response to the Supreme Court's decision, describing it as "a devastating setback for the international protection of refugees." Meanwhile, the Guantánamo detention camp was ordered closed by Federal District Court Judge Sterling M. Johnson, Jr. "The Haitian camp at Guantánamo is the only known refugee camp in the world composed entirely of HIV-positive refugees," he said in his opinion. "The Haitians' plight is a tragedy of immense proportion and their continued detainment is totally unacceptable to this Court."

· Saudi Arabia v. Nelson. Scott Nelson was a safety engineer in a government-run hospital in Saudi Arabia in 1984. He sued the Saudi government in 1988, alleging that he had been arrested, tortured and unlawfully detained for thirty-nine days after he reported an unsafe condition to his supervisors and a government commission. Invoking the Foreign Sovereign Immunities Act (FSIA), the Saudi government moved for dismissal based on lack of jurisdiction; as it currently stands, FSIA denies U.S. courts jurisdiction to hear suits by U.S. citizens against foreign governments, unless the dispute relates to "commercial activity." Nelson prevailed before the circuit court, but at the urging of the Saudi and U.S. governments, the United States Supreme Court agreed to review the case. Human Rights Watch submitted an amicus curiae brief to the Supreme Court on behalf of Nelson, emphasizing the obligation imposed by international law on all states to provide a remedy to torture victims. In light of this obligation, and because Nelson was almost certain not to receive redress in Saudi courts, Human Rights Watch argued for an expansive interpretation of the commercial activity exception to the FSIA. On March 23, 1993, the Supreme Court allowed the Saudi government's motion to dismiss. Middle East Watch responded by publicly urging passage of a proposed bill (H.R. 934) that would amend the FSIA and extend U.S. court jurisdiction to include claims against foreign states that allege injury or death to U.S. citizens caused by foreign security forces. The House Judiciary Committee approved the bill in September 1993.