Fair Pay for Public Defenders: If Mongolia Can Do It, Any Country Can

HUMAN RIGHTS MOVEMENT

Fair Pay for Public Defenders: If Mongolia can do it, any country can

On the first day of 2023, Mongolia’s public defenders received a 300% pay raise. A new law took effect on January 1st that ties the compensation of publicly funded defense attorneys to their courtroom counterparts, prosecutors. Although Mongolia ranks among the world’s poorest countries, it has achieved something that many of the world’s wealthiest states have failed to: pay equity between public defenders and public prosecutors.

Oyunchimeg Ayush (wearing blue in the photo), then the head of the Mongolian state agency responsible for public defense.

A central tenet of adversarial legal systems is that justice is best served when opposing sides are fairly matched. As the European Court of Human Rights put it, “[i]t is a fundamental aspect of the right to a fair trial that criminal proceedings…should be adversarial and that there should be equality of arms between the prosecution and defence.” Similarly, the Inter-American Court of Human Rights says that public defenders should be empowered to act “on equal terms with the prosecution.”

If the goal is a fair fight in the courtroom, it seems obvious that paying public defenders just a third of what prosecutors make would detract from that goal. Yet around the world, such pay disparities are commonplace, a phenomenon I saw firsthand as Global Policy Director for the International Legal Foundation, an NGO that builds public defender systems across the globe.

One reason for this disparity is that most domestic constitutions are silent on this issue. And even in the realm of international law, where the “equality of arms” principle is a well-established component of the bedrock international instrument on fair trial rights, courts have not interpreted this to require “material equality” between prosecution and defense. For example, this ICTR case found no fault with the fact that the prosecution’s team comprised 35 investigators deployed for several years, while the defense team had just two investigators paid to work for a few months. 

Instead, equality of arms is mainly conceived of in procedural terms, such as this HRC case where the court’s failure to allow defense counsel to cross-examine the victim was found to violate the principle. As applied to resources, equality of arms requires only that the resources available to the accused are “adequate” to present a full defense (as the Caribbean Court of Justice points out in §33).

Absent promising legal grounds, the battle for pay parity must be fought in the political arena. But there are major challenges here, too, mainly that elected officials are not usually keen on funding services for people accused of heinous crimes. Public defenders around the world have had to embrace vigorous strategies to compel political action, such as labor strikes and joining forces with prosecutors.

So how did Mongolia do it? Dedicated advocacy by a committed public official.

Oyunchimeg Ayush (wearing blue in the photo to the right), then the head of the state agency responsible for public defense, had grown tired of trying to recruit and retain qualified attorneys on salaries 70-80% lower than prosecutors and judges. She saw the unequal pay not only as unfair but as inefficient: high turnover increased recruitment and training costs and yielded a less-experienced workforce.

So, she started making her case for equal pay. She met with legislators, justice system stakeholders, and cabinet ministers, where she found a key ally in Khishgeegiin Nyambaatar, the Minister of Justice and Home Affairs. She also reached out to the ILF to ask for research on pay parity and examples of other jurisdictions who had achieved it. We pointed her to Argentina, which passed a parity law in 2015, and to the American state of Connecticut, which has had a parity law for 30 years and has been recognized for excellence. This partnership between local and international actors echoes the ongoing debate among human rights scholars like Gráinne de Búrca, Margaret Keck, Kathryn Sikkink and others about how human rights reform is actually achieved. Eventually, Mongolia’s Parliament, known as the Great Khural, amended the legal aid law to require that public defender wage rates equal those received by prosecutors. 

Mongolia’s achievement is all the more impressive in light of its economic constraints. The Mongolian government’s annual budget is roughly $6 billion. Juxtapose this with the American states of Florida and Oregon, whose failure to pass pay parity legislation in recent years was largely justified on budgetary grounds. Oregon’s annual budget? $67 billion. Florida’s? $101.5 billion

Though Mongolia’s achievement is monumental, even these reforms do not amount to true equality of arms between public defenders and prosecutors. In recent years, many commentators have argued that individual pay parity—between defense and prosecution lawyers—is insufficient to ensure an equal playing field. Instead, they argue that what is needed is institutional parity. For example, the leading international instrument on good practices for public defender systems calls for “fair and proportional distribution of funds between prosecution and legal aid agencies,” and the American Bar Association says that parity should extend beyond salaries to include workloads, technology, facilities, investigators, support staff, legal research tools, and access to forensic services and experts.

The inclusion of defense investigators is particularly important. Prosecutors aren’t the only government agents that help prosecute a criminal case. Much of the work of collecting evidence and facilitating witness testimony is done by the police. But police investigations are often subtly (or not subtly) shaped by the prosecution’s theory of the case, and police agencies have historically been less than eager to turn over exculpatory evidence. For this reason, public defender performance standards generally mandate that defense attorneys conduct their own independent investigations. A truer apples-to-apples comparison for public defense agency budgets should not only include the prosecution agency, but also some portion of the police budget, too. 

Mongolia’s revised law does not yet achieve parity on this institutional level, but individual parity is still a huge and significant step, one that is particularly remarkable in light of Mongolia’s economic constraints. Their achievement stands as an admonition to wealthier jurisdictions who claim that pay parity is too expensive. 

Congratulations to the members of the Great Khural, for passing this law; Minister Nyambaatar, for championing it; Oyunchimeg Ayush, for catalyzing this effort; and, above all, to the Mongolian public defenders whose pay finally reflects their vital role in achieving justice. 

May 19, 2023. Ben Polk, Bernstein Institute for Human Rights of NYU Law School. 

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

Wrong Prescription: The Impact of Privatizing Healthcare in Kenya

INEQUALITIES

Wrong Prescription: The Impact of Privatizing Healthcare in Kenya

A collaboration between The Economic and Social Rights Centre-Hakijamii and the Center for Human Rights and Global Justice at New York University School of Law.

The 49-page report draws from more than 180 interviews with healthcare users and providers, government officials, and experts, and finds that the government-backed expansion of the private healthcare sector in Kenya is leading to exclusion and setting back the country’s goal of universal health coverage. 

The report documents how policies designed to increase private sector participation in health, in combination with chronic underinvestment in the public healthcare system, have led to a rapid increase in the role of for-profit private actors and undermined the right to health. Privatizing healthcare has proven costly for individuals and the government, and pushed Kenyans into poverty and crushing debt. While the wealthy may be able to access high-quality private care, for many, particularly in lower-income areas, the private sector offers low-quality services that may be inadequate or unsafe. The report concludes with a call to prioritize the public healthcare system.

Public Transport, Private Profit: The Human Cost of Privatizing Buses in the United Kingdom

INEQUALITIES

Public Transport, Private Profit: The Human Cost of Privatizing Buses in the United Kingdom

The Human Rights and Privatization Project launched a report on the deregulation of local buses in the United Kingdom in July 2021. 

The report finds that the government’s 1985 decision to privatize and deregulate the bus sector in England (outside London), Scotland, and Wales has failed passengers and undermined their rights. Taxpayers are subsidizing corporate profits, while private operators are providing a service that is expensive, unreliable, and often dysfunctional. Fares have skyrocketed while ridership has plummeted, undermining efforts to reduce greenhouse emissions. This approach has also significantly impacted individual’s lives and rights. We found that people have lost jobs and benefits, faced barriers to healthcare, been forced to give up on education, sacrificed food and utilities, and been cut off from friends and family. The government’s new strategy for England leaves this deregulated system in place, and does not address its structural shortcomings. 

The report finds that running a bus service premised on profit and market competition, rather than on the well-being of the public, leads to violations of people’s rights and is incompatible with human rights law. It calls for public control of bus transport as the default approach, which would be more cost-effective and allow for reinvestment of profits, integrated networks, more efficient coverage, simpler fares, consistency with climate goals, and public accountability. Given the importance of public transport on access to essential services and rights, it also calls for a statutory minimum level of service frequency.

‘Chased Away and Left to Die’: New human rights report finds that Uganda’s national digital ID system leads to mass exclusion

TECHNOLOGY & HUMAN RIGHTS

‘Chased Away and Left to Die’: New human rights report finds that Uganda’s national digital ID system leads to mass exclusion

Uganda’s national digital ID system, a government showpiece that is of major importance for how individuals in Uganda access their social rights, leads to mass exclusion. This is the key finding in a new report titled Chased Away and Left to Die, published today by a collective of human rights organizations. The report is the outcome of 7 months of in-depth interviews with a multitude of victims, health workers, welfare workers, government officials and other experts on the national ID, referred to by Ugandans as Ndaga Muntu.

Report cover featuring an interviewee holding documents and being photographed on a phone.

The report argues that the Ugandan government has sacrificed the potential of digital ID for social inclusion and the realization of human rights at the altar of national security. “Ndaga Muntu is primarily a national security weapon built with the help of Uganda’s powerful military and not the ‘unrivaled success’ that the World Bank and others have claimed it is,” said Christiaan van Veen, one of the authors of the report and based at the Center for Human Rights and Global Justice at New York University School of Law.

Obtaining a national digital ID is described as “a nightmare” in the report. Based on official sources, the report estimates that as many as one third (33%) of Uganda’s adult population has not yet received a National Identity Card (NIC), a number that may even be rising. Many others in the country have errors on their card or are unable to replace lost or stolen IDs.

Since Ndaga Muntu is mandatory to access health care, social benefits, to vote, get a bank account, obtain a mobile phone or travel, the national ID has become a critical gateway to access these human rights. As one individual in Nebbi in Northern Uganda, put it succinctly in the report: “Ndaga Muntu is like a key to my door; without it, I can’t enter.” This can literally mean the difference between life and death. A woman in Amudat, in Northern Uganda, described the consequences of not having the national ID for access to health care: “Without an ID […] no treatment. Many people fall sick and stay home and die.”

The report urges the Ugandan government to immediately stop requiring the national digital ID to access social rights. “Government has to go back to the drawing table and rethink the use of Ndaga Muntu,” said Angella Nabwowe of the Initiative for Social and Economic Rights, “especially when it comes to tagging it to service delivery, because many people are being left out.”

Researchers focused their fieldwork in various parts of Uganda on documenting evidence of exclusion of women and older persons from health services and the Senior Citizens’ Grant (SCG) tied to Ndaga Muntu. Since 2019, patients are required to show the national ID to access public health centers. The report details how women, including pregnant women, are ‘chased away’ by health care workers for failure to show their ID. Previously, there was no single, rigid ID requirement to access health care in Uganda.

In March, the Ugandan government also announced its intention to require the national digital ID for access to Covid-19 vaccines. But a lawsuit based on this research by two organizations that co-authored the report, the Initiative for Social and Economic Rights and Unwanted Witness, led to a quick reversal of that policy by the government.

The impact of Ndaga Muntu on the elderly in Uganda is equally heart-wrenching. The report recounts the story of Okye, an 88-year old man from Namayingo in Eastern Uganda whose date of birth was registered incorrectly, ‘making’ him 79-years old instead. The result for Okye is that he is not eligible for the life-saving government cash transfer for persons over 80 (SCG). Okye is not an exception. Senior sources confirmed to the authors of the report that at least 50,000 Ugandans over 80 have similar mistakes on their national ID that make them ineligible for government assistance or do not have a national ID at all. That number is almost certainly an undercount and points to mass exclusion among Uganda’s 200,000 older persons over 80.
The consequences of not having a national ID for older persons can be tragic. Nakaddu, an 87-year old woman in Kayunga district in Central Uganda told researchers that she did not get the cash grant for the elderly: “I don’t get the money, but I don’t know what to do. […] I can no longer dig. My arm is not okay. I cook for myself. Those ones [pointing to the neighbours] give me some food.”

The report blames the struggles and failures of the National Identification and Registration Authority (NIRA) for many of the exclusionary problems with Ndaga Muntu. NIRA has faced criticism for its failure to enroll a larger part of the population, problems with issuing ID cards, high rates of errors, high costs imposed on individuals and allegations of bribery and corruption.
Perhaps NIRA’s biggest failure, however, has been the neglect of its responsibility for registering births. By prioritizing the registration of adults for the national ID over birth registration, the birth registration rate may have plummeted to as low as 13% of children under 1 years old. Meanwhile, the percentage of adults excluded from the national ID may be rising even as NIRA appears unable to keep up with the growing number of young people who turn 18 and become eligible for the national ID card.

“It is quite absurd to invest in registering the adult population for a national ID and forget about the next generation. It is as if NIRA’s left hand does not know, and does not care, what its right hand is doing,” said Dorothy Mukasa, Team leader at Unwanted Witness.
Digital ID systems have been widely hailed by international development organizations and private actors as ways to foster social inclusion and development and promise poor African nations the ability to ‘leapfrog’ towards becoming modern, digital economies. The report by the collective of human rights organizations shows a much darker picture of exclusion, missed opportunities, and significant financial costs.

Not only does the report estimate that the Ugandan government has already spent more than USD 200 million on its digital ID system in the past decade, comparable to the total budget of its Ministry of Gender, Labour and Social Development in that same period. But international organizations and bilateral donors have also poured many millions into Uganda’s health and social protection programs that are now risking to exclude millions from their reach because of Ndaga Muntu’s dysfunction. In an ironic twist, some of those same development partners, like the World Bank, are among the foremost champions of digital ID systems in Africa and have also funded NIRA.

Equally tragic is the fact that many of the benefits of digitalization are missed in this digital ID system. While NIRA maintains air-conditioned servers to house its National Identity Register in Kampala, Uganda’s capital, health care workers still register patients’ national identity information in paper booklets provided by NIRA. And the promised benefits of biometric verification are missed because many remote areas do not have fingerprint scanners or the internet and electricity to make them usable. And when modern biometric equipment worked, many older Ugandans, whose fingerprints have been worn away after many years of manual labor, were, as victims told us, “refused by those machines.”

The report recounts one macabre result of these missed digital opportunities, when an old and sick man was forced by officials to personally travel to a cash transfer distribution point to verify his fingerprints and receive his social benefit. The man set out on a boda boda motorcycle taxi and died on his way there. The last payment due to a deceased beneficiary will customarily be given to family members. Therefore, officials proceeded to take the dead man’s fingerprints.

A short documentary on the impact of Ndaga Muntu on women and older persons can be found here.

This post was initially published as a press release on June 8, 2021.

‘Chased Away and Left to Die’

TECHNOLOGY & HUMAN RIGHTS

Chased Away and Left to Die

How a National Security Approach to Uganda’s National ID Has Led to Wholesale Exclusion of Women and Older Persons

The Ugandan government launched a new national digital ID system in 2014, promising to issue all Ugandans with a national ID number and national ID card, while also building a large central database of identity information, including personal biographic information and digitized biometric information such as fingerprints and facial photographs. This 2020 report documents the continuing wholesale exclusion of large swaths of the Ugandan population from this national digital ID system, known as Ndaga Muntu. Based on 7 months of research together with our Ugandan partners the Initiative for Social and Economic Rights (ISER) and Unwanted Witness, the report takes an in-depth look at the implications of this exclusion for pregnant women and older persons attempting to access their rights to health and social protection.

The report begins with a thoroughly researched overview of the origins and design of the national digital ID system, which was originally described by a prominent government Minister as a “national security weapon.” Although it was strongly linked to national security priorities of the government, the national ID system was also intended to serve a wide variety of uses, including identification and authentication for access to social services and healthcare. However, the implementation of this ambitious system has been filled with challenges—with the result that up to one-third of the adult population remains excluded. Despite robust political support and several waves of mass registration, progress in increasing coverage in the system continues to be frustrated by implementation challenges including budget shortfalls, as well as physical, financial, technological, and administrative barriers to access. All of these challenges have been exacerbated by an environment marked by inequality and discrimination. 

This has led to severe human rights consequences, especially for vulnerable groups such as older persons and women, who have been denied access to lifesaving social services. The report describes how Ndaga Muntu has now become a mandatory requirement to access both government and private services. This includes access to health care and social pensions, as well as the ability to vote, get a bank account, and obtain a mobile phone. In short, exclusion from the national digital ID has become a life and death matter for many people in Uganda. The report draws on focus group conversations and individual interviews with affected persons, as well as discussions with numerous government administrators and scholars, to share deeply contextualized personal accounts of how this mandatory requirement has had an impact on individual lives. 

Based on these extremely concerning accounts of exclusion, discrimination, and violations of economic and social rights, the report concludes with a series of actionable recommendations to mitigate the most pressing human rights concerns. This includes the need to ensure that the mandatory national ID requirement does not continue to lead to exclusion from fundamental rights and services, for instance by allowing for the use of alternative forms of ID. It also emphasizes the need to re-examine whether a national ID system designed to be a national security tool is fit for the purposes of inclusion and human rights. 

UN Special Rapporteur on Extreme Poverty and Human Rights

INEQUALITIES

UN Special Rapporteur on Extreme Poverty and Human Rights

Philip Alston served as UN Special Rapporteur on extreme poverty and human rights from June 2014 to April 2020. The Special Rapporteur is an independent expert appointed by the UN Human Rights Council to monitor, advise, and report on how government policies are realizing the rights of people in poverty around the world.

During his mandate, Professor Alston carried out 11 official country visits and authored 12 thematic reports to the UN General Assembly and Human Rights Council. His thematic and country reports are available below. He also issued a large body of press releases and communications to states and other actors.

Attempted Digital Surveillance as a Completed Human Rights Violation

TECHNOLOGY AND HUMAN RIGHTS

Attempted Digital Surveillance as a Completed Human Rights Violation

Why Targeting Human Rights Defenders Infringes on Rights

On March 1, 2019, this briefing paper on the spyware industry was submitted to the UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression as a response to the Special Rapporteur’s call for submissions concerning the surveillance industry and human rights. 

This submission was made to underscore the need for further guidance on the prevention and remediation of such infringements of the rights to privacy and freedom of opinion and expression, and to encourage the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression to address these issues in his report on commercial spyware.

The research presented in this briefing paper:  

  • Uncovered a gap regarding the application of international human rights law to attempted digital surveillance of human rights defenders, as opposed to completed surveillance. 
  • Explains that attempted digital surveillance of a human rights defender is evidence of the unlawful targeting of that individual on the basis of their opinion. It not only gives the targeted individual a reasonable basis to fear that they are subject to surveillance; it also provides notice that existing due diligence frameworks, export control regimes, and other regulatory measures have failed to protect against human rights violations. 

The Global Justice Clinic states that when attempts to infect human rights defenders’ digital devices with commercial spyware are discovered, the targeted individuals should have the opportunity to seek protection and remedy, and such instances should prompt governments and companies to strengthen the safeguards against such abusive conduct.

With TPS set to terminate, GJC files a Freedom of Information Lawsuit against DHS and USCIS

HUMAN RIGHTS MOVEMENT

With TPS set to terminate, GJC files a Freedom of Information Lawsuit against DHS and USCIS

National Immigration Project et al. v. DHS et al. (Haiti TPS FOIA)

On November 20, 2017, the Trump Administration terminated TPS for Haiti, stating that the conditions caused by the earthquake no longer exist. With TPS set to terminate in July 2019, the Global Justice Clinic, together with the National Immigration Project of the National Lawyers’ Guild, filed a Freedom of Information lawsuit against DHS and United States Immigration and Customs Enforcement to obtain records documenting the reasons behind the government’s decision to terminate TPS for Haitians. The lawsuit was filed in January 2018 with the US District Court for the Southern District of New York, and NYU School of Law’s Immigrant Rights Clinic provided legal counsel.

Temporary Protected Status (TPS) provides protection from deportation or removal and enables the beneficiary to apply for a work permit. The Department of Homeland Security (DHS) designates countries for TPS if they are experiencing armed conflict, have suffered a natural disaster, or face other extraordinary yet temporary conditions that make them unable to safely repatriate their nationals living in the United States. DHS designated Haiti for TPS after the 2010 earthquake and subsequently extended it four times. As of November 2017 there were more than 50,000 Haitian people with TPS in the United States, out of a total population of 300,000 people from various countries with TPS.

Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti

CLIMATE AND ENVIRONMENT

Byen Konte, Mal Kalkile? Human Rights and Environmental Risks of Gold Mining in Haiti

Until now, most discussions about mining have occurred behind closed doors among government officials, company stakeholders, and international financial institutions. There is a dearth of information in the public domain about what gold mining entails, what challenges it poses, what opportunities it presents, and what it may mean for communities and the country as a whole. The purpose of this report is to help fill that gap.

Haiti stands at a crossroads: The prospect of gold mining glitters on the horizon, while the reality of an uncertain political future, weak institutions, and widespread impoverishment glares in the foreground. Celebrated as the only nation in the world born of a successful slave revolution, but known today as the poorest country in the Western Hemisphere, Haiti is a fragile, if resilient, place. Rights are precarious, and basic resources are scarce. As of 2014, only 62 percent of all households in Haiti had access to safe drinking water, while less than 50 percent enjoyed such access in rural areas. The cholera epidemic that erupted in 2010, which has taken more than 9,000 lives to date, has revealed the vulnerability of the Haitian population amid inadequate water, sanitation, and health infrastructure. But it has also highlighted the power of popular protest. Haiti has a longstanding tradition of peasant movements, in which ordinary Haitians have mobilized to challenge and overcome injustice. It is in this context—against the backdrop of the country’s complex history with foreign intervention and investment—that efforts to develop a mining industry in Haiti must be understood.

Minerals can be exploited only once. The current moment, before mining has begun, presents a unique opportunity for the Haitian people to engage in a robust public debate about the risks and benefits of mining and for the Haitian State to implement preventive measures to avoid future human rights abuses and environmental harms. Such a debate requires transparency, public education, and active engagement of Haitian communities.

Report Objectives and Approach

Recognizing the important decisions that Haiti faces, the Global Justice Clinic at New York University School of Law (GJC) and the University of California Hastings College of the Law have prepared this Report concerning the risks and realities of modern gold mining and its implications for human rights and the environment in Haiti. The Report is the fruit of collaboration between environmental law experts and human rights lawyers, informed by the Justice in Mining Collective, a platform of Haitian organizations and individuals committed to promoting the interests of Haiti’s rural, northern communities and prompting a national dialogue about the future of Haiti’s mineral resources. Consistent with best practice in the field of international human rights, this Report is based on intensive documentary research and review of primary and secondary materials on gold mining in Haiti; interviews with community members, Haitian government officials, and representatives of mining companies and international organizations operating in Haiti; field investigation; and discussions with members of communities in areas where companies hold permits for activities related to gold mining. The Report is a product of more than 100 days of interviews and participant observation in more than fifty meetings held in communities affected by mining-related activities in Haiti (see infra). 

All Report-related research in Haiti was undertaken using a human rights-based approach, which supports the power and capacity of people and communities to change their own lives, both independently and through institutions that represent or affect them.  This approach takes respect for human rights as its starting point and end objective, emphasizes the informed engagement of rights-holders in both the analysis of factors affecting their own lives and the design of solutions, and stresses accountability, by including evaluation of both the process and outcomes of the research.

The Report addresses four main issues: 

  • the process of modern gold mining, through an examination of its mechanics around the world and a history of extractive activity in Haiti; 
  • the experiences and concerns of communities in Haiti that have hosted mineral exploration in the past ten years, including community members’ allegations that mining companies have failed to respect human rights and the communities’ fear of future human rights violations; 
  • the environmental and social risks of mining gold in Haiti; 
  • the institutional, legal, and regulatory frameworks that will shape the economic, social, and environmental consequences of mining in Haiti. 

Minimum Standards for Transfer: International Law Concerning Rendition in the Context of Counter-Terrorism

PREVENTION AND CONFLICT

Minimum Standards for Transfer: International Law Concerning Rendition in the Context of Counter-Terrorism

This Legal Advisory sets out the minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfers, articulating threshold standards, substantive norms, and procedural requirements; and concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances. 

In January 2009, President Obama promulgated a number of Executive Orders that created several Task Forces to advise him on certain aspects of U.S. counter-terrorism policy. One of the key issues under review is the U.S. practice of rendition. Several bodies of international law binding on the United States set out rules relevant to the transfer of individuals outside the United States to U.S. territory or to the custody of another state in the context of counter-terrorism operations. International refugee law, international human rights law, and international humanitarian law apply extraterritorially and concurrently. 

Examining human rights, refugee law, and humanitarian law norms together allows for the identification of a minimum baseline standard to be applied whenever the United States carries out the extraterritorial transfer of an individual within its effective control. The transfers to which this minimum standard applies include, for example, “renditions to justice” to the United States or a third state; renditions pursuant to an international arrest warrant or request for surrender by an international court; transfers carried out at the close of hostilities in the context of armed conflict (i.e. repatriations of prisoners of war or security detainees); and transfers across borders of individuals detained in the context of armed conflict. 

This Legal Advisory sets out this minimum baseline standard, articulating threshold standards, substantive norms, and procedural requirements. As a threshold matter, formal transfer processes may not be intentionally bypassed and the United States must have a valid basis for apprehending an individual in contemplation of transfer. Substantively, the U.S. government may not transfer an individual to the custody of a state where he/she is at a real risk of: torture or ill-treatment; persecution; enforced disappearance; or arbitrary deprivation of life. Procedurally, an individual facing transfer must have the ability to challenge the basis for his deprivation of liberty in contemplation of transfer prior to transfer before an independent decision-maker. This challenge must allow the individual to contest the transfer on the basis of fear of being subject to any of the risks protected against by international law. This Legal Advisory concludes with a discussion of human rights norms applicable to the United States’ use of diplomatic assurances.