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Migrant Children’s right to an education threatened by U.S. Governor

By: Christina Rosa Ralph

Journal of Global Rights and Organizations, Associate Articles Editor

TEXAS, United States – The Supreme Court said in Plyler v Doe, “To control the conduct of adults by acting against their children…does not comport with the fundamental concepts of justice.”  Plyler v Doe, 457 US 202, 220 (1982).  Yet, recently, U.S. politicians have begun to more openly and strenuously vilify asylum seekers and undocumented immigrants by labeling them as an “invasion” and blaming them for any number of social ills.  The language seems calculated to agitate people for political reasons and to make them feel anger and hate toward immigrants.  While xenophobic rhetoric from politicians is not new, it is particularly troubling that at least one, Governor Greg Abbott of Texas, has aimed his anti-immigration rhetoric toward innocent migrant children by attacking their right to an education.

Children holding a sign affirming their right to education. Photo Courtesy of CavsConnect.com

Gov. Abbot recently announced plans to challenge Plyler, the 1982 landmark Supreme Court decision that held that all children, regardless of their immigration status, are entitled to equal protection of the law under the 14th Amendment. Plyler struck down a Texas law that allowed undocumented children to be charged for, or excluded from, Texas’s public education system.  Plyler also reaffirmed that the 14th Amendment provisions are “universal in their application…without regard to any differences of race, of color, or of nationality.” 457 U.S. at 212. Yet, Abbott seems determined to label undocumented children a “subclass” not worthy of equal protection under the law, not only under Texas law, but in the hearts and minds of his supporters and others who see no injustice in vilifying children who are simply seeking to get an education.

Abbott’s comments make it clear that, in his opinion, Texas is only educating migrant children because the Federal government is forcing it to; and implying that undocumented children are to blame for deficiencies in education.  But these assertions are challenged, by many Texas educators, including Dallas Superintendent, Michael Hinojosa, who labeled Abbott’s comments a “manufactured crisis in the name of politics.” However, while Abbotts’s comments have been dismissed as “woefully ill-informed” and have been labeled a political “dog whistle” that does not make them any less dangerous to the children he is openly attacking.  And given that Abbott does not bother to distinguish between undocumented children, and children who are US citizens with undocumented parents, the dangers his broad vilification creates threatens all immigrant children and their families. 

In the 40 years since Plyler, states have used direct and indirect ways of limiting immigrant children’s access to education by adding to the already formattable obstacles to education faced by migrant children across the U.S.  Undocumented children, and children who are U.S. citizens of undocumented parents, face constant uncertainty and fear; language, cultural and social barriers; and often poverty and isolation. While the perception of immigrants, flamed by incendiary comments by public officials, is “intrinsically tied to negative perceptions” about immigrants, and a constant reminder to these children that many believe they are not welcome and do not belong.

The Supreme Court called education the “primary vehicle for transmitting ‘the values on which our society rests.’”  In Texas, it appears the governor is willing to use that vehicle to pass on values that teach some children they are more deserving of an education than their peers who are immigrants or 1st generation Americans while teaching others that they are, and will remain, a subclass of persons not worthy of an education or of equal protection under the law.

 

For further information, please see:

Dallas Morning News – Texas Educators say Immigrant Children aren’t as Much of a Worry as State Funding – May 9, 2022

Institute for Immigration Research – Plyler v Doe: Implementation, Challenges, and Implications for the Future – Aug. 2022

Latina Republic – Barriers in the United States Education System for Immigrant Children – June 23, 2021

MALDEF – MALDEF Statement on Texas Governor’s Comments on Landmark Educational Ruling – May 5, 2022

NPR – Talk of ‘invasion’ moves from the fringe to the mainstream of GOP immigration message – Aug. 3, 2022

Plyler v Doe, 457 U.S. 202 (1982)

New York Times – Texas Governor Ready to Challenge Schooling of Migrant Children – May 5, 2022

The World Cup Kicks Off in Qatar Amid Scrutiny

By: Hannah Gavin

Journal of Global Rights and Organizations, Senior Associate Member

LUSAIL, Qatar – Kicking off on November 20th, the FIFA World Cup began in Lusail, Qatar. The World Cup, while typically a joyous occasion, has been shrouded in questions about the civil rights status of many living within Qatar. Primarily these concerns which have garnered international attention, include issues with LGBTQIA+ people and migrant workers. Although some hope was given that there would be some mitigation of these issues prior to the start of the game, no such hope remains. 

Construction work in Doha, Qatar ahead of the 2022 World Cup. Photo courtesy of Tasneem Alsultan for The New York Times

Qatar is a small, oil-rich shore country on the Persian Gulf. The nation is a traditionally conservative Muslim nation which adheres to a strict interpretation of Islam. Many in the International community feared that the nation was not open enough to Western ideals to accommodate such a multicultural event. One concession Qatar made was to allow alcohol to be consumed within the stadiums. However, just two days before the first match, the country reneged on this promise and made the stadiums go dry.

One of the most prominent issues in the nation is its treatment of LGBTQIA+ people. It is illegal to be gay in Qatar. Any act that is considered “immoral” can lead to a prison sentence. Fans have feared that it may not be safe for LGBTQIA+ visitors in the nation. Despite reassurances from Qatari leaders, since the commencement of the games, there have been several instances of fans being forced to change out of rainbow dress and players being banned from wearing rainbow armbands. Although, so far, LGBTQIA+ fans within the designated stadium zones have gone unharmed, outside of the designated zones they do not have the same protections.

Another human rights issue in Qatar is the treatment of migrant workers. In the past decade, Qatar has welcomed millions of migrant workers in an attempt to make up for a lack of cheap labor within the country. Over three million migrants currently live in the nation. These workers worked in horrid conditions, getting paid on average less than $300 per month. Although Qatar claims less than 50 workers have been killed in the building of the stadiums, other estimates are in the thousands. Beyond this, many workers have been under the complete control of their employers with almost no autonomy. While many gather in the stadiums built by migrant workers, there are families across mainly southern Asia whose loved ones will never return.

Despite these serious concerns, the World Cup in Qatar will go on. The event is estimated to draw in over $10 billion for the country. Although a massive success even despite the controversy, no attendee can ignore that past the glitz and glam, there are real lives at risk in the small country. Once the matches end and the pitch is cleared, these individuals will have to continue on in a nation in which they are not valued. 

 

For further information, please see:

Britannica – Qatar: Host of the 2022 World Cup – 2022

Human Rights Watch – Qatar: Security Forces Arrest, Abuse LGBT People – Oct. 24, 2022

NPR – Here are the things World Cup fans are restricted from doing in Qatar – Nov. 19, 2022

NYT – The World Cup’s Forgotten Team – Nov. 16, 2022

ECHR Continues Disappointing Extradition Trend – Overrules Trabelsi v. Belgium

By: Nikolaus Merz

Impunity Watch News Staff Writer

STRASBOURG, France – On November 3, 2022, the European Court of Human Rights (“ECHR”) released two judgments regarding extraditions to the United States for instances involving possible life sentencing. In Sanchez v. United Kingdom and McCallum v. Italy, the Grand Chamber found that the extradition of the petitioners – both accused of crimes that could result in possible life sentences in the United States if extradited – was allowed under Article 3 of the European Convention of Human Rights (“Article 3”).

The Grand Chamber delivers its judgment in Sanchez v. the United Kingdom. Photo Courtesy of the European Court of Human Rights.

Article 3 reads, in full; “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The two judgments continue a disappointing trend of the ECHR of interpreting when an extradition violates Article 3 with exceptional narrowness. Since 2001 there has been only a single case, Trabelsi v. Belgium, where the extradition of a petitioner was found to be in violation of Article 3.

In the majority of such extradition cases, the ECHR will generally uphold extraditions because life without parole (“LWOP”) and death sentences in the U.S. can be delayed or forgiven through a variety of legal mechanisms (stays, commutations, pardons, clemency, etc.). Because of these caveats, the ECHR has created a legal fiction that such sentences are not in violation of Article 3 (and therefore extraditions are allowed), because they can technically be reduced to a sentence which would be acceptable under Article 3.

What the ECHR neglects, and what the petitioner in Trabelsi successfully argued, however, is that these sentences are often irreducible de facto. Of the roughly 1.5 million people in prison in the U.S. today, more than 200,000 are serving LWOP sentences or a like equivalent. An incredibly small minority of these cases will likely ever receive commutations. A study of available data for eight northeastern states revealed that between 2005 and 2021 just 210 commutations were granted. For instance, Rhode Island has only granted a single commutation since the 1950’s; a posthumous pardon for a murder from the 1800’s.

Nevertheless, the ECHR held in Sanchez that Trabelsi was to be overruled as a binding decision. The ECHR held that Trabelsi had incorrectly applied a “domestic” interpretation of Article 3 when it should have applied an “adapted approach” for purposes of extradition.

The Grand Chamber further followed a two pronged test to determine when extradition would or would not violate Article 3. First, petitioners must establish that there is a real risk of receiving a LWOP or worse sentence, and secondly that a mechanism for sentence review does or does not exist in the requesting state. Absurdly, the Court found that the petitioner in Sanchez, an alleged drug trafficker also accused of being connected to a death resulting from a fentanyl overdose, was not at risk of a life sentence.

The judgment in Sanchez has concerning implications. In overturning Trabelsi’s universal Article 3 interpretation, the Grand Chamber has effectively cast aside the universality of the European Convention of Human Rights; creating instead a hierarchy of rights where European citizens will be afforded greater rights and protections under its provisions than non-citizens. Additionally, the ECHR seems to imply that America’s exceptionally limited commutation system does not constitute de facto irreducibility for sentences. Further, the Grand Chamber has seemingly adopted an exceptionally narrow interpretation of when there is genuine risk of life imprisonment; ignoring the historical propensity of the United States to issue exceptionally hefty “tough on crime” sentences.

With the ECHR overruling Trabelsi, it designates the case as nothing more than a mere aberration among its extradition judgments, and heralds a return to a narrow interpretation of Article 3. It will likely be some years before we see another Trabelsi, if ever.

 

For further information, please see:

ECHR – Delivery of the judgment 03/11/2022 – 3 Nov. 2022 

ECHR – Extradition and life imprisonment – Nov. 2022

ECHR – Extradition of the applicant would not be in violation of the European Convention – 3 Nov. 2022

ECHR – SANCHEZ-SANCHEZ v. THE UNITED KINGDOM – STATEMENT OF FACTS AND QUESTIONS – 6 July 2020

Prison Policy Initiative – Executive inaction: States and the federal government fail to use commutations as a release mechanism – Apr. 2022

The Sentencing Project – No End In Sight: America’s Enduring Reliance on Life Sentences – 17 Feb. 2021

ECHR Finds that the Slovenian Courts Violated a Neurosurgeon’s Right to a Fair Hearing

By: Marie LeRoy

Impunity Watch News Staff Writer

STRASBOURG, France – Vinko V. Dolenc, a celebrated neurosurgeon in Yugoslavia, was found to have been denied his right to a fair trial by the European Court on Human Rights (ECHR).  The ECHR found that the Slovenian Court, in recognizing an Israelis Courts judgment, without being sure that the Courts had respected Dolenc’s right to a fair trial, had recognized a judgment that violated Dolenc’s Article 6 § 1 Convention rights.

Picture of Vinko V. Dolenc. Photo curtesy of: https://www.sazu.si/en/members/vinko-v-dolenc

In May 1995 an Israeli citizen sought damages from Dolenc for medical negligence during a surgery he performed that left the patient paralyzed.

In January 1999, the Israeli trial started. Dolenc refused to recognize the Israeli courts authority, arguing that only Slovenia law applied. Dolenc argued that since Israeli and Slovenia had both signed the Hague Evidence Convention, he and his witnesses should be examined only before a Slovenian court. In accordance, Dolenc and his witnesses refused to travel to Slovenia to participate in the trial and refused to testify via video link. The Israeli Supreme Court denied his request and held that testifying over video link was a proper means of testifying. Dolenc continued to argue that testifying over video link was practically impossible.

In February 2003, the Israeli court upheld its earlier judgement, that Dolenc refusing to testify over video link was not because it was practically impossible, and the Court struct Dolenc’s main statement from his file when he continued to refuse to testify. In April 2004, Dolenc dismissed his legal representative and did not appoint a new one. The Israeli court then attempted to allow Dolenc’s witness to testify in Slovenia but no one showed up on the day of testimony. The Court then attempted to have another hearing in Israeli but, once again, no one appeared for Dolenc. The Court then gave Dolenc opportunities to submit his closing statement, but he never did.

On June 9, 2005, the Israeli court found Dolenc fully liable based on the evidence submitted. The court further found that Dolenc “had done everything he could to prevent the examination and had thereby prevented it from discerning the truth”. Through this, Dolenc asserted that he had no knowledge of the hearing dates nor of the opportunities the Court had given him to submit his closing arguments. 

In 2011 the patient appealed to the Slovenian Supreme Court to recognize the Israeli Courts holding. In 2018 the Slovenian Supreme Court found against Dolenc accepting the Israeli reasoning that Dolenc had been given opportunity to participate in the matter, that Dolenc had essentially waived his right to defend himself by dismissing his attorney and not appointing a new one, and the permissibility of disregarding the Hague Evidence Convection (framework for transmitting documents from and to opposing parties) procedure for witnesses.

The ECHR found that the Slovenian court had failed to properly investigate the Israeli’s court judgment. In particular, the ECHR noted that the only evidence considered by the Israeli court was the allegation made by the patient and the evidence put forward by them. The ECHR also noted that the Israeli court had not even attempted to have the Slovenian law expert examined via Hague Convention procedure, which means that the Israeli court applied unfavorable Israeli law to Dolenc without proper consideration.

As a result, the ECHR found that the Slovenian courts had not satisfied themselves that the Israeli trial had been fair, and therefore breached their duty under Article 6, § 1 of the Convention. The ECHR ordered the Slovenian courts to pay 15,600 euros to Dolenc for costs and non-pecuniary damages.

 

For further information, please see:

Dolenc v. Slovenia – ECHR- 20 Oct. 2022

Inter-American Commission on Human Rights (IACHR) Ruled in Favor of Jamaican Plaintiffs Challenging Criminalization of LGBTQ People

By: D’Andre Gordon

Impunity Watch Staff Writer


Kingston, Jamaica — In 2006, Times dubbed Jamaica “The Most Homophobic place on Earth.” Seven years later, Dwayne Jones, a 16-year-old transgender woman was brutally murdered at a party for wearing clothing considered feminine. Dwayne Jones’ tragic death sparked worldwide condemnation and certainly did not help the island state of Jamaica shake the label Times assigned years earlier. Dwayne’s murder was not an isolated incident, but part of a long history of state-sponsored violence against LGBTQ individuals.

Andree, the self-proclaimed guardian of the trans and gay youth of Shoemaker Gully in Kingston, Jamaica, says he has been homeless for as long as he can remember. Photo courtesy of Christo Geoghegan, New York Times.

At minimum, the violence is impliedly supported by the state through a lack of judicial enforcement against perpetrators of crimes against LGBTQ people. Many of the heinous acts of violence against LGBTQ people in Jamaica stem from homophobic legislation originating in the colonial era known as The Offences Against the Person Act 1864, in combination with religious zealotry.

Unfortunately, it is incredibly difficult and arguably impossible for LGBTQ people to seek relief when they suffer harm based on their sexual identity because the “savings clause” in the Jamaican Constitution effectively bars discriminatory provisions in The Offences Against the Person Act 1864 from constitutional scrutiny. As such, Plaintiffs Gareth Henry and Simone Edwards brought a case against Jamaica at the Inter-American Commission on Human Rights. Plaintiffs alleged The Offences Against the Person Act 1864 violated the principle of non-discrimination and equality before the law, right to life and to humane treatment, right to privacy, right to freedom of thought and expression, right to family life, right to freedom of movement and residence, right to participate in government, and right to health. This Act prohibits same-sex sexual activity and criminalizes acts of “buggery” and “gross indecency.” Consequently, anyone (only men) convicted under this law face a maximum penalty of ten years imprisonment with hard labor. Under current Jamaican law, LGBTQIA people have no protections and The Offences Against the Person Act 1864, a remnant of British colonization, reinforces and legitimizes violence against LGBTQIA people.

Plaintiffs now live abroad where they have found safety. It is not unusual for LGBTQ victims of violence to flee the island and seek asylum elsewhere. Further, their families can also become targets. Because Jamaica lacks LGBTQ protections, LGBTQ people are frequently subjected to mob violence, corrective rape, extortion, harassment, forced displacement, and discrimination. Many of these acts are perpetrated by state officials including law enforcement.

After a decade long struggle, the IACHR issued a public report in favor of Plaintiffs on December 31, 2020, declaring Jamaica non-compliant with its legal obligations under the American Convention on Human Rights. This decision is a landmark decision because it was the first decision of its kind issued by the IACHR regarding the rights of LGBTQ individuals in the Caribbean. The Commission laid out an array of recommendations for Jamaica to protect LGBTQ individuals. Two of the recommendations were repealing sections 76, 77, and 79 of The Offences Against the Person Act and adoption of anti-discrimination legal framework to prohibit discrimination based on sexual orientation, gender identity or expression – real or perceived – and body diversity.

The Commission’s decision is non-binding but is a ray of optimism because it may pressure the Jamaican Parliament to act in the interests of LGBTQ individuals. The decision is a massive victory for not only the two plaintiffs, but all LGBTQ people in Jamaica and the Caribbean. Though the decision was met with opposition from anti-LGBTQ advocates, it is incumbent on the Jamaican state to act with haste by passing laws in support of LGBTQ people because an injury to one is an injury to all. Whether the country will pass protections for LGBTQ people and enforce them is still uncertain, but dedicated activists continue to urge the government to do so.

For further information, please see:

CBC Radio – After fleeing to Canada, activist helps secure victory for LGBTQ rights in Jamaica – 18 Feb. 2021
IACHR – Report No. 401/20. Case 13,095. Merits (Publication) – 31 Dec. 2020
Laws of Jamaica – The Offences Against the Person Act – 1 Jan. 1864
Making Queer History – Dwayne Jones and the dangers of tragedy tourism – 09 Dec. 2020
The New York Times – On Being Queer in the Caribbean – 30 Oct. 2015
U.S. Dep’t. of State – 2021 Country Reports on Human Rights Practices: Jamaica – 2021