Tag Archives: Human Rights

In Our Own Backyards: The Need For a Coordinated Judicial Response to Human Trafficking

Hon. Toko Serita

Introduction

In a relatively short period of time, New York State has put itself at the vanguard of the battle against human trafficking. New York has passed several laws criminalizing sex and labor trafficking, recognized that anyone younger than eighteen years of age arrested on prostitution charges is a “sexually exploited child” and a “victim of a severe form of trafficking,” and, most recently, provided a way for sex trafficking victims to vacate their prostitution convictions.

In the years since these laws took effect, I have observed that our understanding of the dynamics of domestic and foreign sex trafficking, both locally and domestically, has improved. The trafficking cases that are seen in the Human Trafficking Intervention Court (HTIC),over which I preside provide a glimpse of this expanded understanding. These cases discredit the popular notion that modern day slavery and the sexual enslavement of girls, women, and foreign undocumented persons do not occur “in our own backyards.” And yet, despite this improved understanding, defendants arrested on prostitution charges are not generally recognized as victims, but are charged as criminals. The criminal justice system has been unable to adequately identify those defendants that might be victims of trafficking. To date, there has been very little scholarship analyzing either New York’s human trafficking laws or the role prostitution diversion courts play in identifying trafficking victims and providing alternatives to incarceration. This article addresses the different types of trafficking cases that are intercepted through the criminal justice system, the current state of sex trafficking law in New York, and, finally, the role of the HTIC in identifying and providing solutions for trafficking victims. It also addresses the necessity of creating a coordinated judicial response to this human rights problem, and recommends ways that this can be accomplished.

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Climate-Induced Community Relocations: Creating an Adaptive Governance Framework Based in Human Rights Doctrine

Robin Bronen

English: Eagle, AK, July 27, 2009 -- Don and J...

English: Eagle, AK, July 27, 2009 — Don and Judy Mann’s house in Eagle, Alaska was pushed 300 feet off of its foundation by ice and flood waters. (Photo credit: Wikipedia)

Climate change and the ecological alterations that result will cause millions of people to flee their homes.  This humanitarian crisis is occurring with unprecedented rapidity in the Arctic, where  rising temperatures, loss of arctic sea ice, thawing permafrost  have impacted  the 200 indigenous communities that have lived there for millennia.  Disaster relief and hazard migration have been the traditional humanitarian responses to extreme environmental events.  Yet government agencies are no longer able to protect communities despite spending millions of dollars on erosion control and flood relief.  Because there may be no way to quickly reverse the harm caused by climate change, community relocation may be the only immediate and permanent solution to protect people facing climate-induced ecological change.

This article provides an overview of the climate-induced ecological changes occurring in Alaska and an analysis of the post-disaster recovery and hazard migration laws that define the current humanitarian response to extreme weather events in the United States.  The author argues that these laws fail to address environmental disasters that occur gradually and require relocation and have, in fact, impeded efforts to relocate communities.  The article describes the unprecedented social and ecological crisis climate change has caused in Newtok, an Alaskan indigenous community that has resolved to relocate.  Ultimately, the article proposes the enactment of an adaptive governance framework based in human rights doctrine to protect people residing in communities threatened by climate change.  This framework will allow government agencies to transition their humanitarian response from protection in place to community relocation.

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Torturous Intent: Refoulement of Haitian Nationals and U.S. Obligations under the Convention Against Torture

Alyssa Bell & Julie Dona

Abstract

This paper argues that the Board of Immigration Appeals (BIA) erred when it strictly limited the scope of Convention Against Torture (CAT) protection for deportees facing inhumane treatment in Haitian jails. The authors examine In re J-E-, in which the BIA narrowed the definition of torture under CAT to acts undertaken by governmental officials with the purpose of causing the detainee to suffer, thereby excluding governmental acts undertaken simply with the knowledge that the detainee would suffer. In J-E-, the BIA assumed that Congressional language of “specific intent” compelled a requirement of purpose by the governmental actor. This paper provides a careful analysis of how the term “specific intent” has been used in criminal law and finds that, contrary to the BIA’s analysis, there is significant doctrinal support for interpreting CAT to require only a knowledge mens rea on the part of governmental actors. A knowledge requirement is also consistent with the language of CAT, the language of the Senate’s reservations to its signing, and the spirit and purpose of CAT. The authors argue that the BIA’s cursory analysis is not entitled to deference by the Circuit Courts, and they provide recommendations for legislators and practitioners.

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