Latest Blog Entries

The IHR Clinic blog is written and edited by students and recent alums of the University of Chicago Law School. The blog examines contemporary issues in human rights, as well as social, political and cultural events viewed through the lens of human rights. 

The Rights of Prisoners and Detainees Living with HIV and Drug Dependent Persons in Russia, by Lauren Morris (1L)

The Russian Federation, a member state of the United Nations since 1945, has committed itself to protecting and promoting human right through its ratification of the Convention against Torture (CAT) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Yet, some of the most vulnerable populations in Russia are denied the very rights these treaties aim to protect. People living with HIV are among the most vulnerable. They experience high levels of stigmatization and discrimination at the hands of both public and private institutions. And with roughly 70% of people living with HIV in Eastern Europe having contracted the disease through injecting drug use, the stigmatization and discrimination spreads to drug dependent persons as well.

Agents of the state create and perpetuate a hostile environment for people living with HIV and drug dependent persons. Testimonies from detainees, some in jail with no legal justification, detail horror stories from being denied food, water and medical attention, to physical brutality at the hands of detention officers. Such treatment is in direct violation of Russia’s obligations under international human rights law, including prisoners’ and detainees’ right to be free from torture and other cruel, inhuman or degrading treatment or punishment, and their right to health. CAT defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession.” By subjecting detainees to the physical brutality of detention officers, the state and its agents are in clear violation of the right to be free from torture. General Comment No. 14 of the Committee on Economic, Social and Cultural Rights (General Comment No. 14) elaborates on the content of the right to health in Article 12 of ICESCR. It establishes the obligation of States Parties to refrain from denying or limiting prisoners and detainees access to preventive, curative and palliative health services. By denying food, water, and adequate medical attention, the state fails to fulfill this obligation In addition, General Comment 14 provides that health goods and services “must be accessible to all” and within “safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as . . . persons with HIV/AIDS.” It further explains that the right to health includes the obligation to create conditions that assure the provision of essential drugs, of which antiretrovirals are included.

The Russian Federation has adopted the same view on drug dependency as the WHO, recognizing drug dependence as a chronic illness. Despite this, Russia has banned one of the most successful evidence-based treatments available for drug dependency—opiate substitution therapy (OST). OST has proven to be effective in reducing opiate addiction, including heroin addiction. Instead, Russia employs punitive measures and denies drug dependent persons access to treatment.  This, in turn, discourages those suffering from drug dependency, and people living with HIV in particular, from seeking medical assistance, due to the fear of discrimination and mistreatment at the hands of authorities.

Russia needs to change its policies, strategies, and treatments for drug dependent persons and those living with HIV to be in line with its human rights obligations and international medical standards. This includes providing adequate health care for detainees. One way to create this change is to focus efforts on training law enforcement and detention officers. Article 10 of CAT requires that States Parties include “education and information regarding the prohibition against torture . . . in the training of law enforcement personnel.” The High Commissioner for Human Rights has produced a manual for the training of law enforcement personnel. The manual lists the prohibition against torture as an essential principle of police investigations and articulates the human rights obligations of law enforcement personnel. Article 12 of CAT requires that States Parties “ensure that [their] competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed.” By implementing these practices and de-stigmatizing HIV and drug dependency within the prison system, appropriate medical treatment is more likely to be applied in Russia. In addition, State officials must implement proven successful, evidence-based treatment program, such as OST. Without evidence-based treatment, the relapse rate for drug dependent persons is considerably higher and the withdrawal process is painful and degrading. Toward this end, education programs should be implemented to raise awareness about drug dependency in Russia.

As it stands, Russia is in breach of its obligations under CAT and ICESCR. It must act to protect, respect and fulfill the rights of people living with HIV and drug dependent persons in prison and detention.

IHR Clinic Students Reflect on Fact-Finding Trip to Columbia

Marco Traversa, LL.M. Candidate Class of 2014

I have recently come back from a fact-finding mission in Cali, Colombia, through the International Human Rights Clinic and the RFK Center for Justice and Human Rights. During our trip, my team-partner Lindsay Short and I, together with Professor Sital Kalantry, interviewed members of the Nasa Indigenous Community.

Prior to the trip, we spent months conducting research, writing affidavits and preparing questions in order for the trip to be as profitable as possible.

Even though I have consistently worked on this project throughout the school year, it was not until I interviewed primary school students that I realized what education means to me and what education means to them.

In the “Western World,” we tend to take education for granted, we perceive costs such as pencils or notebooks as relatively minor. When we think about human rights, our immaginarium goes directly towards:  right to life, right to privacy, freedom of religion and so on so forth. Education to us is not only something that is free and available, but also something that is mandatory: we are “forced” to receive education, we do not have to fight for it.

By interviewing our “clients” and speaking to the community, I perceived “the forgotten importance of education.” The right to education is not only a basic right, it is the basic right.

This trip reminded me how, only through education, a community can fight for its other rights, such as land and physical security. And above all, only through education can the rule of law be established.

Our “clients” have to walk from 1 to 4 hours to get to school and they face all sorts of dangers. However, they still wake up every day and go to school, where, if they do not have the compulsory material, they can be forced to clean bathrooms or halls. They do so because it is fundamental for them; they want to go onto secondary school in order to improve the life of their communities.

Our trip is part of an on-going project that started a few years ago, thanks to the dedicated work of Professor Kalantry. In the previous steps, Professor Kalantry’s team managed to secure a court ruling in Colombia that held that education should be free. Our goal is to make education more accessible and to eliminate high costs, often amounting to 40% of the family budget. Substantially free education is the first step through which the indigenous communities of Colombia can fight for their rights.

Lindsay Short, J.D. Candidate Class of 2015

Diego’s family makes an all-day trek, from their remote indigenous community to the nearest large city, to purchase his school supplies each year.  Their expenses include books, notepads, lunches, and a uniform—which may not seem like much, until you realize that for children like Diego, these expenses alone equal about 30% of his family’s annual income.  If Diego, 13, cannot afford his uniform, he’ll need to clean one of his school’s bathrooms. Other students in his region have dropped out of school because they couldn’t afford one pencil.  Others walk up to four hours each way to school every day, their paths marked with armed conflict and dangerous terrain.

I learned these stories firsthand, alongside Professor Sital Kalantry and classmate Marco Traversa, during a January fact-finding trip to Cali, Colombia, through the International Human Rights Clinic (IHR Clinic) and the RFK Center for Justice and Human Rights.  In Cali, we also teamed with a local association for indigenous rights and a Colombian lawyer to manage the logistics and help us throughout the interview process.  The trip was part of a larger project to attain truly free education for indigenous Colombian primary school children and to ultimately bring a case to an international legal body by the end of this school year.

The trip is just one example of the practical, real-life work I’ve experienced in my time in the IHR Clinic.  My partner Marco and I spent much of fall quarter drafting affidavits (initially in English, then translated to Spanish), based off interview transcripts and recordings from a previous fact-finding trip.  We also spent time drafting the most comprehensive, specific interview questions possible for our trip, and learning about the current situation in Colombia and work done to date on the case.  During our four days in Colombia, we interviewed indigenous students, their parents, and two local governors to learn more about their specific education and community experiences. We subsequently constructed affidavits based on the interviews.          

Using what we learned in Colombia, my group will now spend the rest of the year analyzing educational data (ranging from costs of education to dropout rates to male-female ratios in schools), and finalizing and filing our petition.  Our ultimate goal is that neither Diego, nor any of his classmates, will ever need to worry again about cleaning bathrooms—or worse, dropping out completely—because the costs of education are too burdensome for his family.

A Brief History of Burma and Its Ethnic Minorities, by Maia Landamy (1L)

Burma is in the process of transitioning from a military dictatorship into a country that engages with the rest of the world. The old Burma was characterized by the imprisonment of its Nobel Peace Prize laureate-opposition leader, rebellions of ethnic minorities, and isolation from the world stage. The new Burma is a country that allows for a genuine opposition movement, is moving toward ceasefires and peace treaties, and is making other changes necessary to take part in world affairs.

Burma achieved independence from the United Kingdom in 1948. Shortly thereafter, it became engulfed in the world’s longest-running civil war. Ethnic minorities, who enjoyed autonomy under British rule, did not want to be ruled by the Burmans, who had traditionally oppressed them. The minority groups rebelled in bids for independence and autonomy. In addition to these ethnic rebellions, there was a military coup in 1962 in which General Ne Win seized power. Ne Win oppressed the ethnic minorities, impoverished the country with his Burmese Way to Socialism, and closed Burma to the outside world. The country went from exporting rice to lacking sufficient rice to feed its people.

In August of 1988, university students led an uprising that looked like it might topple the military junta. The military cracked down brutally. It closed universities and schools and dissidents were either killed or imprisoned.  The military State Law and Order Restoration Council, later renamed the State Peace and Development Council, took control of the country.

In 1990, the military junta called for elections. Aung San Suu Kyi, now a Nobel Peace Prize laureate and pro-democracy hero in Burma, formed a new opposition party called the National League for Democracy (NLD). Suu Kyi is the daughter of Aung San, who founded the modern Burmese army and advocated for Burma’s independence from the United Kingdom before his assassination in 1947. The newly formed NLD won a majority of the seats in parliament. However, the military refused to recognize the election results and cracked down on the opposition, placing Suu Kyi and other members of the opposition under house arrest. Suu Kyi remained under house arrest for 15 of the following 20 years.

Burma held democratic parliamentary elections in 2012. Suu Kyi was elected to parliament, with the NLD winning 43 of 46 seats in contention. Presidential elections will be held in 2015, and Suu Kyi has expressed interest in running. However, the Burmese Constitution of 2008 requires that the president have military experience and not have any immediate family with loyalty to other countries (Burma forbids dual citizenship). These provisions, which may have been written with her in mind, prohibit Suu Kyi from running for the presidency, as she lacks military experience and her two sons are British citizens. Suu Kyi is seeking to have the constitution amended, but more than 75% of the legislature needs to approve any constitutional amendment. A quarter of the seats in both chambers of the Union Legislature are reserved for members of the military, so a constitutional amendment will need to have at least some military support to pass.

Current Burmese President Thein Sein has spoken out in favor of amending the constitution to allow Suu Kyi to run in the 2015 presidential election. He has also made significant strides toward genuine ceasefires with ethnic rebel groups and worked to establish global ties. Nonetheless, despite the current trend toward democracy and an end to the ethnic conflicts in Burma, significant problems remain. For instance, Burma has not yet joined several important United Nations treaties pertaining to human rights. Moreover, it has committed many human rights abuses since its independence. Though it is a party to the Convention on the Rights of the Child, it has conscripted children into the armed forces and failed to protect the rights of ethnic minority children, including their right to receive an education in their native language. Burma is also party to the Convention on the Elimination of All Forms of Discrimination against Women, but constitutional guarantees of equal protection under the law have been only loosely enforced.

Burmese Refugees

The Burmese government currently recognizes 135 ethnic groups, split into 8 major ethnic races. The Burmans comprise about 2/3 of Burma’s population. The two largest minorities are the Shan (9% of Burma’s population) and the Karen (8% of Burma’s population). There are also ethnic groups present in Burma that the government does not recognize, including the Rohingya, Sino-Burmese, Anglo-Burmese, Burmese Indians, and Burmese Gurkha.

Many ethnic minorities have fled Burma seeking freedom from persecution and better economic opportunities. The Karen, Karenni, and Shan have fled primarily to Thailand. The Chin have fled mostly to Malaysia, and India in smaller numbers. The Rohingya have fled primarily to Bangladesh. These countries function as their countries of asylum.

UNHCR, the UN Refugee Agency, seeks durable solutions for refugees. The three possible solutions are (1) voluntary repatriation to the country of origin, (2) absorption into the country of asylum, and (3) third-country resettlement. Third-country resettlement is usually an option of last resort, used only when conditions for safe voluntary repatriation are note foreseeable and the country of asylum is unable to absorb the refugees.

A third-country resettlement program for Burmese refugees began in 2005. The US has accepted more than 73,000 Burmese refugees since then (most coming from Thailand, and some from Malaysia and India). Around 19,000 Burmese refugees in Thailand resettled to other countries, but resettlement from Thailand is winding down. January 24, 2014 was the last day to register for group resettlement to the US. Urban refugees in Malaysia continue to have access to the US refugee resettlement program, but politics and demographics mean that the option will not remain open forever.

Although a voluntary repatriation process is not in place at present—a little over 3% of refugees from the camps in Thailand returned to Burma last year, half as many as left for third country resettlement—it appears likely that one is inevitable. However, refugees in the Thai camps have expressed fear and reluctance at the prospect of returning to Burma. Conditions in Burma are improving, but many areas are still unsafe and lack even the basic amenities found in the refugee camps.

The Thai government appears eager to close the camps. When the resettlement program began, around 150,000 refugees were in the camps in Thailand. Despite the resettlement of more than 70,000 refugees to western countries (most from Thailand), around 120,000 Burmese refugees remain in the Thai camps. Thailand fears that the prospect of third-country resettlement has served as something of a pull factor, drawing additional refugees into Thailand.

Despite the third-country resettlement of many refugees and the likelihood of an eventual voluntary repatriation to Burma, significant issues remain for Burmese refugees in the region. For example, the countries of asylum have had mixed human rights records related to their treatment of Burmese refugees within their borders. And while the circumstances for many ethnic minorities in Burma are on the upswing, the situation for others, including the Rohingya, remains dire.

This post will be followed by an exploration of the circumstances of the Rohingya.