LAW440 final PT2
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School
University Of Arizona *
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Course
440A
Subject
Philosophy
Date
Apr 3, 2024
Type
Pages
10
Uploaded by NateGunzAZ
Attempt Score
96 / 100 -
96 %
Overall Grade (Highest Attempt)
96 / 100 -
96 %
Final Exam Short Answer: Section 1 (Questions 1 & 2)
You are a human rights advocate at an NGO that provides advocacy
support and legal assistance to survivors of torture and human rights
abuses.
You have just met with “M.L.” who resides in the United States. Just
over a year ago, she fled the country of Dystopia, applied for asylum
and recently was granted refugee status in the United States. M.L. was
granted asylum because she was tortured by Dystopian officials on
account of her political opinion, which was very anti-Government.
Walking around her neighborhood in Tucson the other day, M.L. saw
one of her torturers on the street. She believes his name is D.O.
As a survivor of torture, M.L. wants those who violated her human
rights to be held accountable. She asks you to explain to her the
options for bringing to justice those who tortured her. In the very least,
she wants to pursue criminal and/or civil action against the individual
(D.O.) she saw on the street.
Please answer Questions 1 and 2.
Question 1
Can D.O. be criminally prosecuted in a U.S. court for the torture of
M.L.? If yes, what statute applies and what is the basis for jurisdiction
over D.O.?
Yes, D.O. can potentially be criminally prosecuted in a U.S. court for
the torture of M.L. The relevant statute that applies is the Torture
Victims Protection Act (TVPA) of 1991. This Act allows civil suits to
be brought in U.S. courts against individuals who, acting under the
authority of a foreign nation, have committed torture or extrajudicial
killing. The basis for jurisdiction over D.O. lies in the Alien Tort
Statute (ATS), which provides federal courts with jurisdiction over
lawsuits brought by aliens for torts committed in violation of
international law. Therefore, if D.O. is found to be present within the
jurisdiction of the United States, M.L. could pursue criminal action
against him under the TVPA.
Question 2
Can M.L. sue D.O. in a civil lawsuit in a U.S. court for torturing her? If
yes, what statute applies? Is there any U.S. case law that might
prevent her from bringing a lawsuit? Explain.
Yes, M.L. can sue D.O. in a civil lawsuit in a U.S. court for torturing
her. The relevant statute that applies is the Alien Tort Statute (ATS).
This statute allows non-U.S. citizens to bring civil suits in U.S.
federal courts for violations of international law, including torture.
However, there have been recent U.S. Supreme Court decisions,
such as Kiobel v. Royal Dutch Petroleum Co. (2013), which have
limited the extraterritorial reach of the ATS. Therefore, the success
of M.L.'s lawsuit may depend on factors such as the specific
circumstances of the torture, where it occurred, and whether D.O.
has sufficient ties to the United States.
Final Exam Short Answer: Section 2 (Questions 3-5)
M.L. was not able to bring all of her immediate family to the United
States—she had to leave behind her eldest daughter (who is a minor)
and her husband in Dystopia. There is a civil war raging in Dystopia
and M.L.’s husband has made public his opinion that the Dystopian
Government is corrupt and the rebel forces should be in power. In fact,
he was recently convicted of a political crime
in absentia
(in his
absence) in a civil court in Dystopia. Like M.L., he holds
anti-Government opinions and is likely being persecuted for his views.
The husband and daughter have managed to make it to the border of
Dystopia and the U.S. and are pursuing legal and illegal means of
entering the U.S.
M.L. wants to know answers to Questions 3, 4, and 5.
Question 3
What international treaty might be applicable to this situation? Why?
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The international treaty that might be applicable to this situation is
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. This treaty obligates states
parties to prevent and punish acts of torture, regardless of whether
the torture occurs within their jurisdiction or extraterritoriality. Since
M.L. was tortured in Dystopia and seeks refuge in the United States,
both countries have obligations under the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment to ensure that she is protected from further harm and
that those responsible for her torture are held accountable.
Hide question 3 feedback
The international treaty that is applicable in this situation is the
Convention and Protocol Relating to the Status of Refugees.
According to the Article 1 of the Convention, it defines a refugee as:
"owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion." This is a like-for-like description of M.L.'s husband's situation.
He is being persecuted for his political opinions by the government
and is fearing for his and their daughter's life. Therefore, this
international treaty is applicable to this situation.
Question 4
If M.L.’s husband and daughter enter illegally, can they be penalized
according to international law? Explain.
Due to the principle of non-refoulement, enshrined in the 1951
Refugee Convention and other human rights instruments, that
prohibits states from returning individuals to a territory where they
face persecution or threats to their life or freedom. Therefore, if
M.L.'s husband and daughter can establish a well-founded fear of
persecution in Dystopia, they should be granted asylum or other
forms of protection in the United States, regardless of their method
of entry. Meaning that if M.L.'s husband and daughter enter the
United States illegally, they cannot be penalized according to
international law.
Question 5
Is her husband precluded from applying for asylum and receiving
refugee status on account of his conviction, according to international
law? Explain and include any questions you might have for M.L.
M.L.'s husband is not precluded from applying for asylum and
receiving refugee status solely on account of his conviction in
absentia in Dystopia. According to international law, individuals
should not be denied asylum based solely on their political beliefs or
past convictions for political offenses. However, the husband's
conviction may be considered as part of the asylum application
process to assess the credibility of his fear of persecution. M.L.
should ensure that her husband's asylum application includes
detailed information about his political activities and the reasons why
he fears persecution in Dystopia.
Hide question 5 feedback
The husband would not be precluded from receiving refugee status on
account of his conviction. Under the Convention on Refugees and the
Protocol a refugee may be precluded when: 1.) they have committed
crimes against peace, war crimes, or crimes against humanity or a
serious non-political crime outside the host country, and/or 2.) they are
guilty of act contrary to the purposes and principles of the UN.
It would be important to ask M.L. about the conviction and what the
charges entailed. What was the nature of the political crime, and did it
have any non-political elements that could be considered a crime
against humanity or a war crime? Also, it would be helpful to know if
the husband was guilty of any acts that could be construed as contrary
to the purposes of the UN. Did he incite violence against anyone other
than the oppressive regime? Was he involved in any extra-judicial
killings or any acts contrary humanitarian law in a time of war?
Understanding his actions and role in the rebellion better could help or
hinder his case for refugee status inside the U.S.
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Final Exam Short Answer: Section 3 (Questions 6 & 7)
Though at the border, M.L.’s husband and daughter are “in hiding” in
Dystopia because the husband will likely be detained, tortured, and/or
killed by Dystopian forces or officials on account of his
anti-Government views. There are many other Dystopian citizens who
are also in hiding because they will likely be detained, tortured, and/or
killed by Dystopian forces or officials on account of their
anti-Government opinions.
Dystopia and the United States are both members of the United
Nations and the Organization of American States. Both have signed
and ratified the United Nations Convention against Torture and Cruel,
Inhuman and Degrading Treatment and Punishment and the 1951
Refugee Convention and Protocol. Dystopia has signed and ratified
the American Convention on Human Rights but, as you know, the
United States has not.
Please answer Questions 6 and 7.
Question 6
If M.L.’s husband enters illegally, can the United States return him to
Dystopia, under international law? Explain.
If M.L.'s husband enters the United States illegally, international law
prohibits the United States from returning him to Dystopia if he
would face a risk of torture or persecution there. This principle is
derived from the principle of non-refoulement under the 1951
Refugee Convention and the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. Therefore, if
M.L.'s husband can establish a well-founded fear of persecution or
torture in Dystopia, he should be allowed to remain in the United
States and pursue asylum or other forms of protection.
Question 7
Staying focused on the facts and scenario described in Section Three,
answer
either
Question A
or
Question B:
A) What United Nations body might be best suited to address this
human rights situation? Why?
B) What body in the Inter-American system might be best suited to
address this human rights situation? Why?
Considering the scenario described, the United Nations body best
suited to address this human rights situation would be the Office of
the United Nations High Commissioner for Human Rights (OHCHR).
The OHCHR is responsible for promoting and protecting human
rights worldwide, including through monitoring, reporting, and
providing assistance to individuals and communities affected by
human rights abuses. Given the severity of the situation in Dystopia
and the potential for widespread human rights violations, the
OHCHR could play a crucial role in raising awareness, advocating
for accountability, and providing support to survivors like M.L. and
her family.
Final Exam Short Answer: Section 4 (Question 8)
The civil war in Dystopia has intensified with Government forces
sweeping the countryside and killing civilians who are suspected of
aiding the rebel forces. The “aid” includes feeding and housing rebel
soldiers and providing medical assistance to injured rebel soldiers. The
Government has also started interning civilians, including children,
who belong to the minority ethnicity in Dystopia because the rebel
forces are primarily of that ethnicity. There is a rumor that those
civilians will be executed or given long prison sentences and the
children will be adopted by families of the majority ethnicity. M.L.
wonders if there is anything in international law to address this
situation.
Please answer Question 8.
Question 8
Please describe and explain to M.L. the doctrine of "Responsibility to
Protect" (R2P). You may also want to include one or two real-life
events/situations/examples to assist in explaining the doctrine or, for
purposes of illustration. Your answer should be no more than 1-2
paragraphs.
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The doctrine of "Responsibility to Protect" (R2P) is a principle of
international law that asserts that states have a responsibility to
protect their populations from genocide, war crimes, ethnic
cleansing, and crimes against humanity. If a state is unable or
unwilling to fulfill this responsibility, the international community has
a responsibility to intervene, including through diplomatic,
humanitarian, and, in extreme cases, military means, to protect the
affected population.
In 2005 at the world summit the R2P was endorsed by world
leaders. It has since been invoked in various conflicts and crises,
such as the interventions in Libya in 2011 and in the Central African
Republic in 2014.
If a state fails to protect its population, the international community,
through the United Nations, has a responsibility to intervene to
prevent mass atrocities (United Nations, 2005). An example of R2P
in action is the intervention in Libya in 2011, where NATO forces
intervened to protect civilians from the Gaddafi regime (United
Nations, 2011).