This Note places wartime activity in Syria such as real property seizures and mass demolition within the theoretical framework of urbicide. The wanton, widespread destruction and seizure of homes or public spaces in Syria is a distinct, intentional form of violence against the built environment of the country’s cities, one which is intended to forcibly impose an urban politics of separation and homogeneity. The Assad regime’s tactics in Syria and urbicidal conduct more broadly should not be seen as discrete destructive events—or even series of events—occurring during periods of direct hostilities, but ought to be interpreted expansively: as ongoing processes in which postwar reconstruction is not the solution to urban destruction but rather the continuation of such violence. A failure to account for the logic underlying urbicidal wars may result in post-conflict authoritarian practices of economic patronage and the selective recognition of property assets in ways that are themselves urbicidal in purpose and effect. This Note argues that current reconstruction orthodoxy and the international community’s focus on property restitution as a means to facilitate the return of refugees and internally displaced persons (“IDPs”) is misguided; “traditional” models of post-conflict property restitution fail to properly consider the linkages between methods of destruction and possibilities of future conflict, thus permitting urbicidal reconstruction and the persistence of authoritarianism.Download the PDF
As the planet continues to warm, climate-induced migration is poised to become a global crisis. For the most vulnerable geographies—most prominently, low-lying island states—climate migration poses an immediate and existential threat. Without substantial adaptation, the lowest-lying island states are predicted to be uninhabitable by mid-century, necessitating wholesale migration and jeopardizing cultural identity, independence, and sovereignty.
Vulnerability to climate change is fundamentally shaped not only by environmental conditions, but by pre-existing social and political realities. Throughout Oceania, colonial legacies have induced climate vulnerability and impede effective adaptation. Colonial histories have left most Pacific Island states without the resources and capacity to pursue the type of intensive adaptation that could enable their survival. Meanwhile, dominant narratives portray the loss of islands to rising seas as a foregone conclusion and climate migration as inevitable, further foreclosing possibilities for adaptation. This accepted loss of whole nations represents a continuing strand of colonial narratives that cast islands and their peoples as peripheral and, therefore, expendable.
Such colonial dynamics are no longer commensurate with modern commitments to equity, justice, and human rights. International law safeguards the ability of all peoples to exist and to maintain sovereignty and self-governance through the fundamental human right of self-determination. In repudiation of the structural injustices produced by colonialism, self-determination was first codified as a right vesting exclusively in colonized peoples and continues to carry special force with respect to decolonizing peoples today. Yet unless persistent colonial dynamics are challenged, climate migration threatens to permanently extinguish the self-determination of Oceanic states, reproducing and exacerbating past injustices. The fate of islands has global consequence. Currently on the frontlines of climate change, the situation in islands today foreshadows the future of other decolonizing geographies as climate impacts intensify.
This Article will suggest that decolonizing states can leverage colonial histories to protect their self-determination in light of climate change. Taking the Republic of the Marshall Islands—one of the island states most imminently threatened by climate change—as a case study, this Article will first share Marshallese perspectives demonstrating that migration is not an acceptable response to climate change. Next, this Article will advance a novel climate justice theory, connecting colonial conduct to the threat of climate migration to establish that international human rights and decolonization norms vest colonial powers with moral and legal obligations to assist their former colonies with self-determination-preserving adaptation strategies. Finally, this Article will concretize this theory, suggesting specific legal strategies that Marshallese and similarly situated communities might pursue.Download the PDF
Chile has been held up as a transitional justice success story. Emerging from a repressive dictatorship to democracy, it has made meaningful progress in grappling with brutal human rights violations through truth commissions and, more recently, criminal trials. Yet, the Chilean human rights prosecutions have a glaring hole. Courts have convicted scores of state agents for enforced disappearance, execution, and torture (or their equivalents in Chilean law at the time), but have failed to meaningfully address sexual violence crimes, even though almost all women detained by the regime were victims of some form of sexual violence, and many were raped. Recently, however, the issue seems to be gaining more judicial attention.
This Article explores the question why it has taken so long for Chilean courts to reach the issue of dictatorship-era sexual violence. The reasons include the “pacted” Chilean transition, deficiencies in Chilean criminal law and procedures on sexual violence, lack of resources for sexual violence prosecutions, normalization of violence against women, and the reluctance of survivors to come forward when the likelihood of success was exceedingly low. The Article also examines the confluence of cultural and legal forces—perhaps most importantly, feminist mobilization and greater judicial openness to international norms—that have given rise to recent attempts to litigate sexual violence. Ultimately, it seeks to draw lessons from the Chilean transitional justice experience for future domestic prosecutions for sexual violence in the context of mass atrocities.Download the PDF
In nearly three years in office, President Donald J. Trump’s war against immigrants and the foreign-born seems only to have intensified. Through a series of Executive Branch actions and policies rather than legislation, the Trump Administration has targeted immigrants and visitors from Muslim-majority countries, imposed quotas on and drastically reduced the independence of Immigration Court Judges, cut the number of refugees admitted by more than 80%, cancelled DACA (Deferred Action for Childhood Arrivals), and stationed Immigration Customs and Enforcement (“ICE”) agents at state courtrooms to arrest unauthorized immigrants, intimidating them from participating as witnesses and litigants. Although initially saying that only unauthorized immigrants convicted of serious crimes would be prioritized for deportation, the Trump Administration has implicitly given ICE officers carte blanche to arrest unauthorized immigrants anytime, anywhere, creating a climate of fear in immigrant communities.
Particularly disturbing is the targeting of asylum-seekers, employing the criminal justice system and the illegal entry statute in the “zero tolerance policy.” Under this policy, children, including toddlers, are seized and languish for months and years separate from their families, many of whom are seeking asylum. Directly contrary to federal statute and international law, another policy makes anyone who enters the country without inspection ineligible for asylum. Kirstjen Nielsen, Trump’s second Secretary of the Department of Homeland Security (“DHS”), ordered asylum applicants to await the lengthy processing of their claims in cartel-ruled border areas of Mexico, with no realistic safe shelter and deprived of all meaningful opportunity to exercise their statutorily-guaranteed right to access to counsel—a necessity, given today’s convoluted asylum law.
Trump’s first Attorney General, Jefferson Sessions, largely disqualified as grounds for asylum even the most brutal and terroristic persecution of women and violence perpetrated by inescapable quasi-state gang actors. Customs and Border Protection (“CBP”) officers mislead asylum-seekers at the southern border, telling them they don’t have the right to apply for asylum or saying yes, they may apply, but admitting only a minute fraction of those who present themselves for processing at ports of entry. President Trump’s Administration refuses to grant parole or reasonable bond even to those asylum-seekers who establish a credible fear of persecution, frequently resulting in long-term detention, and forcing on detained asylum-seekers the Hobson’s choice of lengthy incarceration in terrible conditions in the United States or the risks of persecution and death in their countries of origin.
International law prohibits using the criminal justice system or prolonged administrative detention to deter and discourage bona fide asylum-seekers from asserting and proving their claims. We suggest two remedies: Federal courts should enforce article 31 of the 1951 Refugee Convention (1) by prohibiting criminal charges of unlawful entry against bona fide asylum-seekers until they complete the asylum application process and are denied asylum; and (2) by requiring parole or reasonable bond for asylum-seekers who pass fair credible fear interviews. The article argues that bona fide asylum-seekers should be kept in detention only for a short period, if at all, to determine whether they have a credible fear of persecution.
Article 31 of the Refugee Convention, made binding on the United States through our accession to the 1967 Refugee Protocol, generally prohibits “impos[ing] penalties, on account of their illegal entry or presence, on refugees . . . where their life or freedom was threatened.” “Penalties” clearly must include not only criminal prosecution and prison, but also prolonged immigration detention and the seizure of children from parents without good cause, for “deterrence” purposes. We argue also that customary international law and human rights treaties support the recommended remedies and stand squarely against the Trump Administration’s policies. Federal courts may utilize customary international law directly or through the Charming Betsy canon.
Not only do the Trump Administration’s harsh immigration policies and practices violate international law and American values, but also foretell a government tending toward exclusion, racism, nationalism, parochialism, authoritarianism, and disregard of the rule of law. The parallels between the Trump Administration and Hungary’s autocratic, essentially one-party, state, are chilling. See Patrick Kingsley, He Used to Call Victor Orban an Ally. Now He Calls Him a Symbol of Fascism, N.Y. Times (Mar. 15, 2019), https://www.nytimes.com/2019/03/15/world/europe/viktor-orban-hungary-ivanyi.html (on file with the Columbia Human Rights Law Review).
Federal courts, however, have both the authority and the responsibility to enforce the 1951 Refugee Convention and the 1967 Refugee Protocol as well as international human rights norms to protect asylum-seekers from criminal prosecution and from prolonged detention. The Framers of the United States Constitution and its key amendments envisioned that federal courts would apply treaties as the rule of decision to protect foreigners and would serve as a check upon an Executive that tramples on individual rights, particularly the rights of a vulnerable minority. Given the outlandish behavior of this Administration, federal courts must live up to that vision.Download the PDF
The current refugee crisis demands novel legal solutions, and new ways of summing the political will to implement them. As a matter of national incentives, the goal must be to design mechanisms that discourage countries of origin from creating refugees, and encourage host countries to welcome them. One way to achieve this would be to recognize that persecuted refugee groups have a financial claim against their countries of origin, and that this claim can be traded to host nations in exchange for acceptance. Modifications to the international apparatus would be necessary, but the basic legal elements of this proposal already exist. In short, international law can and should give refugees a legal asset, give host nations incentives to accept them, and give oppressive countries of origin the bill.Download the PDF
Pursuant to our obligations to the international community, the United States provides asylum to individuals fleeing persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.” The “on account of” prong of the asylum determination is referred to as the nexus requirement. The paradigmatic asylum case features a man fleeing a dictatorial regime that has persecuted or would persecute him on account of his political dissidence or ethnicity. Absent credibility concerns, these cases are routinely granted, and immigration judges do not question whether the nexus requirement has been met.
In other cases, however, for example cases in which a woman is fleeing gender-based violence such as domestic violence, trafficking, or forced marriage, or cases in which a young man is fleeing retribution because he refused recruitment to a gang, the immigration agency has frequently denied relief. Often, even if the applicant has shown that she or he is a member of a cognizable particular social group or has another protected trait, immigration judges have held that the nexus requirement has not been met. Judges have reasoned that “personal” or “criminal” reasons motivated the persecution, as opposed to the protected ground. In the domestic violence context, for example, immigration judges have held that the abuse occurred because the abuser was a “despicable person” or due to his “inherent meanness,” rather than on account of the victim’s gender or social group. Similarly, in the gang context, immigration judges have held that the persecution occurred due to generalized violence or the gang members’ desire for increased power, as opposed to the victim’s gender or social group.
Yet, in the paradigmatic asylum case, immigration judges have not stopped to ask whether the dictator was a “despicable person” or in pursuit of more power. They have implicitly recognized that although these things may of course be true, it is also clear that the persecution occurred due to the victim’s political opinion or ethnicity.
This article attempts to explain that discrepancy. I argue that, unlike the paradigmatic asylum case, where the persecutor’s motives are overt and well-documented, some gender-based cases and cases based on gang violence feature “silent motives.” In cases involving silent motives, it falls upon the immigration judge to fill in the nexus gap left by this silence. Accordingly, unlike in the paradigmatic asylum case, the nexus determination in such cases is susceptible to influence from the immigration judge’s biases.
This article uses theories from cognitive science to posit that when immigration judges analyze silent motives cases, they use heuristics and other mental shortcuts, which often work against finding nexus on account of a protected ground. In two prior articles—The New Nexus and Nexus Redux—I proposed a new standard for evaluating nexus in asylum cases. This article explains why such a standard is necessary.Download the PDF
On May 19, 2017, Illinois Attorney General Lisa Madigan offered the introductory keynote remarks at the Bringing Human Rights Home Lawyers’ Network Annual Human Rights in the U.S. Symposium, entitled Localizing Human Rights in the New Era: Strategies for State and Local Implementation of Human Rights in the United States. The following is adapted from her remarks.Download the PDF
Human rights in the United States are at an inflection point, and the orientation is local. In the wake of the 2016 presidential election and renewed threats to human rights and democratic institutions, state and local officials and human rights advocates are working locally to resist harmful federal policies and to fill the gaps in federal civil rights enforcement. Indeed, safeguarding and securing human rights at the local level has more urgency than ever. Near daily protests and demonstrations, which consistently invoke human rights language and framing, illustrate the breadth of rights at stake.1 Human rights were front and center at the women’s marches that erupted across the country in January of 2017. Black Lives Matter and the Movement for Black Lives have embedded human rights into their approaches. And recent efforts to repeal the Affordable Care Act (ACA) have sparked public support for healthcare as a human right across the United States.
As rights protections are increasingly threatened, many states and local governments are stepping in, often echoing support for human rights. For example, Minneapolis Mayor Betsy Hodges grounded her call to reject the repeal of the ACA in human rights, stating that it “is immoral that anyone in America would be without affordable access to healthcare, which is [one of] the most basic of human rights.” The National League of Cities has noted the negative human rights implications of state laws that preempt these progressive local policies.
Of course, state and local governments have long played an important role in bringing the United States into compliance with its international human rights commitments. But in recent years, the role of local governments has taken on greater significance, as an increasing number of state, city, county, and municipal level officials embrace a proactive human rights approach, develop new tools and techniques to address local problems, and influence local, state, and national policy. Lawyers and advocates, too, are initiating, encouraging, and promoting innovative efforts to “bring human rights home.” This special issue of the Columbia Human Rights Law Review explores the localization of human rights in greater depth.Download the PDF
This Note contributes to the literature in three ways. Part I of this Note defines and describes the targeted context, provides examples of state/municipal delegation, discusses the underlying tension between vindicating federal rights and respecting states’ rights to structure their own internal governance, and observes that courts have taken a nuanced approach to resolving this tension analogous to § 1983’s standards supervisory liability. Part II describes judicial approaches to state/municipal liability and analyzes two proposed theoretical frameworks. Part III examines the history and function of § 1983’s “supervisory liability” standards, looks at recent state/municipal delegation cases through the lens of supervisory liability, and argues for the adoption of an analogous standard to govern state/municipal delegation.Download the PDF
Whether to believe an asylum applicant is one of the most critical issues in asylum law. Many competing interests are in direct conflict: the need to protect people from persecution, the government’s desire to control entry into the country as an exercise of sovereignty, the extreme difficulty of gathering documentary proof of one’s persecution, and the government’s concerns about allowing security threats into the country. It is essential to strike the right balance between these conflicting priorities. The conflict between national welfare and public safety against individual liberty and personal security is not, however, a matter of mere policy preferences. The Constitution demands that whenever government action threatens to deprive an individual of their liberty, that individual must be provided due process. Unfortunately, policymakers have adopted the rhetoric of “security” and cultivated a climate of fear to justify increasing the burdens on refugees to prove their eligibility for asylum. In 2005, the REAL ID Act, claiming to be an effort to maintain security and identify asylum fraud, dictated the factors immigration judges must consider in determining whether an asylum applicant’s testimony is credible and therefore able to support their claim for asylum. Among these factors is the applicant’s “demeanor.”
This Note argues that the consideration of demeanor is a violation of asylum applicants’ due process rights. Though demeanor evidence is pervasive throughout the American legal system, its validity has been called into question by modern psychological studies, and its use has been sharply criticized by legal scholars. Furthermore, unique aspects of asylum adjudication make the use of demeanor especially damaging. Because corroborating evidence is frequently unavailable to asylum applicants, their claims typically turn on their own testimony. To have that testimony found not credible will almost certainly mean denial of the asylum claim. The extraordinary breadth of ways in which demeanor can be assessed, combined with the lack of meaningful judicial review of demeanor determinations, gives immigration judges overwhelming discretion to deny claims for asylum.Download the PDF