The question for Ethiopians around the world is now a simple “what next?” After thousands have demonstrated in major cities around the world and amplified the cries of the innocent victims on cruel Saudi streets, we are still sizzling with anger and frustration. We remain haunted by the images of our brothers and sisters bleeding on the streets of Jeddah; a head pressed down against concrete under the boot of a Saudi police; medieval brutalities meted out on young men tied down to receive lashes that cut into flesh. The government of Saudi Arabia, which seemed to have encouraged the wanton public lynching of Ethiopian immigrants and its subsequent refusal to take swift action to stop the violence once it got out of control, is primarily responsible for each injury sustained by the victims. The Saudi police participated directly in committing the atrocities. Many young Saudi civilians also took part in the free-for-all mob action against helpless men and women.
As Ethiopians and people of Ethiopian descent, we have an obligation to respond. The responses must include legal action, media campaign, organized financial and legal support for victims, and grass-roots campaign for international condemnation of Saudi Arabia’s conduct of gross human rights violations. In this article, I will outline a possible framework for a multi-faceted, effective legal response to the brutal attacks against Ethiopians.
Application of International Human Rights Law
There is no doubt that the atrocities committed against unarmed men and women by the police and others violated international human rights law. Saudi Arabia has violated several fundamental rights recognized under international law as inalienable rights that every state must guarantee individuals within its territory. Under customary international law, Saudi Arabia, like all other nations, must guarantee everyone within its border the right to life and protect individuals from being subjected to torture or cruel, inhuman, degrading treatment or punishment, and against arbitrary arrest and detention.
The atrocities committed against Ethiopians in Saudi Arabia violated several provisions of the International Covenant for Civil and Political Rights (ICCPR) and Universal Declaration of Rights (UDR). The actions have violated Article 2, 6, and 7 of the ICCPR and Articles 3 through 12 of the Declaration of Human Rights that codified the basic international human rights guarantees: the right to life; protection against torture, inhuman and degrading treatment; protection against persecution on account of race, national origin, etc.; and protection against arbitrary arrest and detention.
Concerned Ethiopian civic organizations and advocacy groups have the right and obligation to register their complaint with the UN Human Rights Council and other international bodies and demand an international condemnation of the violations committed against its citizens. These groups can file a complaint with the UN Human Rights Council outlining the abuse in detail and providing supporting evidence for each claim.
The UN Human Rights Council is charged with the responsibility of investigating claims of human rights violations. Any individual, group, or non-governmental entity that alleges human rights violations committed by a government or individuals can submit a complaint to the Council for investigation. The Human Rights Council’s resolution 5/1, adopted on June 18, 2007, sets forth a specific procedure for submitting claims of human rights violations. The human rights violations committed by the Saudi government satisfy all of the requirements of the Council for initiating a formal investigation.
The main factors the Human Rights Council considers in deciding whether to accept a complaint for investigation are as follows:
i) Whether the request is politically motivated;
ii) Whether the object of the complaint is consistent with the Charter of the United Nations, the Universal Declaration of Human Rights and other applicable instruments in the field of human rights law;
iii)Whether the complaint sets forth factual descriptions of the alleged violations, including the rights which are alleged to be violated;
iv) Whether the claimant has direct and reliable knowledge of the violations concerned or has submitted reliably attested communications accompanied by clear evidence;
v) Whether the claim is exclusively based on reports disseminated by mass media; and
vi)Whether the violation is being addressed by an international tribunal or has available effective domestic remedies.
A claim, supported by affidavits, pictures, video recordings, and media reports submitted by a non-governmental civic organization or group would satisfy all of these requirements. Such a claim can be submitted to the Complaint Procedure Unit?Human Rights Council Branch ?Office of the United Nations High Commissioner for Human Rights?United Nations Office at Geneva ?CH-1211 Geneva 10, Switzerland ?Fax: (41 22) 917 90 11 ?E-mail: CP@ohchr.org.
International Criminal Court
Where a nation fails to employ its legal system to prosecute those who commit human rights violations, the International Criminal Court can assert its jurisdiction to bring them to justice. The international criminal court is empowered to prosecute individuals, regardless of their status as an official of a sovereign nation, for committing, aiding or abetting, or encouraging others to commit human rights violations. Officials within the law enforcement units of Saudi Arabia, particularly those in charge of the units responsible for the murder, rape, and lynching of Ethiopians in Riyadh and Jeddah should be referred for investigation and prosecution before the International Criminal Court.
However, since Saudi Arabia is not a signatory to the Rome Conference of 1998 that established the International Criminal Court, the only way the Saudi perpetrators can be prosecuted by the ICC is through a referral of the matter to the ICC by the UN Security Council. The government of Ethiopia can and should make the request for such a referral.
Domestic Legal Remedies
In addition to international human rights law, one can look to potential legal remedies within the national laws of various states. This process begins with identifying laws that provide extraterritorial jurisdiction for gross human rights violations. These laws can be used to file lawsuits against specific individuals who committed atrocities against Ethiopians in Saudi Arabia.
In the United States, the Torture Victim Protection Act of 1991 (TVPA; Pub.L. 102–256, H.R. 2092, 106 Stat. 73, enacted March 12, 1992) allows individuals to file civil suits seeking monetary damages in the United States against individuals who, acting in an official capacity for any foreign nation, committed torture or extrajudicial killing. As a pre-requisite to invoking jurisdiction, the victim has to show that he or she has exhausted the local legal remedies if such remedy is “adequate and available.” Such lawsuits can be filed by US citizens or noncitizens present in the United States. If a specific official or individual is identified as responsible for committing, planning, overseeing, or encouraging the atrocities against Ethiopians, the victim of the atrocity can file a lawsuit in the United States. The parents of a victim of extrajudicial killing, for example, can sue the officials responsible for causing the death of their child.
In addition, the Alien Tort Claims Act (ATCA) of 1789 allows individuals to sue for a wrongful act committed outside of the United States in violation of the laws of nations or a treaty of the United States. This law was used successfully to sue individuals and officials who committed atrocities in violation of international human rights law outside the United States. For example, in 1980 a Paraguayan father successfully brought a lawsuit in the United States against a Paraguayan policeman who tortured and killed his son in Paraguay. Although the scope of the statute was restricted by a recent US Supreme Court decision, it is widely accepted by legal scholars that it still applies to cases that involve allegations of “serious violations of international law principles protecting persons.”
A precursor to these local remedies is the identification of the perpetrators and victims. These lawsuits would only be possible if the officials involved in instituting the policy of terrorizing Ethiopian migrant workers are identified. Therefore, the first task should be identifying the name, position, and the role of the various officials involved in the Saudi government apparatus, including the police and security officials and the governing bodies of the cities of Riyadh and Jeddah.
The database of perpetrators must include the names of Saudi civilians who committed atrocities. Many of these individuals were pictured while proudly showing off their acts of brutality. The pictures of these individuals should be compiled and published in a website dedicated for identifying perpetrators of the atrocities, including their names and addresses. Tools such as facial recognition technology and various social media searches provide powerful means of identifying these individuals over the coming years. Eyewitnesses as well as individuals with tips can provide information on the website.
Once the perpetrators are identified, their identity and evidence of their crime can be submitted to national authorities. Several nations now require a visa applicant to certify that he or she has not committed crimes for which he or she was not arrested. If any of these individuals are then found in any such nation, they can be prosecuted for perjury and can also be brought to justice for the crimes they committed.
These legal actions cannot materialize without a proper documentation providing evidence of alleged violations. These include: type and nature of atrocities committed; identities of the victims; and the losses suffered by the victims, who should be encouraged and assisted in documenting their injuries by taking pictures, video-recording their injuries, obtaining medical records, and preparing affidavits. Lawyers and paralegals are currently assisting a number of victims in this process. For the vast majority, however, these services may not be available for a variety of reasons. An affidavit form should be made available on-line to allow victims to download, fill-out and resubmit.
The Saudi government has allowed its security forces to single out a particular group of people based on their national origin and subjected them to acts of lawless violence committed in full view of the world. The Saudi government subsequently failed to bring anyone to account for these inhuman acts, including murder, rape, and torture, many of which were committed on public streets in front of witnesses.
Ethiopians and all other foreign residents of Saudi Arabia entrusted their safety and legal rights to the government of Saudi Arabia. That trust has now been shattered in the grossest possible manner. We have no reasonable expectation that the government of Saudi Arabia will reconsider the callous neglect with which it treated the pre-modern violations of the rights of Ethiopians within its border. It has thus befallen us to muster our own resources, meager that they may be, and defend the rights of our brethren no matter how long it takes or how hard we may have to fight.
Derege Demissie is a lawyer with the Boston law firm of Demissie & Church where he practices trial and appellate litigation. He is also vice-president of the American Civil Liberties Union of Massachusetts.